Mohinder Singh vs Kamaljit Singh and Another

A.P. Chowdhri, J.—This revision petition is directed against the order of the District Judge, Sangrur, dated October 29, 1991, allowing the decree-holder''s application under Order 21, Rule 37, read with Section 55 of the Code of Civil Procedure.

Brief facts giving rise to the above application are that: Kamaljit Singh petitioner sustained injuries on I3th January, 1985, as a result of accident alleged to have been caused by the rash and negligent driving of Car PUV-6005 by Karnail Singh, respondent No. 2. The car belonged to Mohinder Singh, respondent No. 1. Kamaljit Singh made an application for compensation. The Motor Accident Claims Tribunal by award, dated 31st July, 1986, awarded compensation of Rs. 4,000/-. The petitioner took out the execution vide execution case No. 77 dated 23rd December, 1986. The application was dismissed by order of the District Judge, dated January 25,1985, on an objection taken by the Judgment-Debtor. The objection was that the application for arrest and detention in civil prison was competent only if there was mala fide or dishonesty on the part of the judgment-debtor, as laid down in Jolly George Varghese and Another Vs. The Bank of Cochin, . As there was no such averment in that execution application, the learned District Judge held the same to be not competent and accordingly dismissed the same. It was thereafter that the present application under Order 21, Rule 37 and Section 55 of the Code was made. The material averment made in the present application for execution was that the judgment-debtor had concealed the car PUV-6005 in order to deprive the petitioner of the fruits of the decree, the application was contested. The executing Court framed the following issues:-

Whether the present execution-application is maintainable?

Whether the execution application is barred by the principles of res judicata as alleged.?

Whether the J.D. was not the owner and in possession of Car No. PUV-6005?

Relief.?

Under issue No. 1, it was held that the execution application was maimtauuble. Uader Issue No. 2, it was held that the application was not barred by the principle of res judicata. Under Issue No. 3, it was held that the judgment-debtor had mala fide and dishonestly concealed his assets/or immovable property, and the alleged sale of the car in question, was not proved. It was further held that his object appeared to be to defeat and delay the execution of the decree with mala fide intention. With these findings, it was held that the judgment-debtor was liable to be arrested and detained in civil prison. Aggrieved by the order, the judgment-debtor has preferred this revision.

I have heard the learned counsel for both the parties. The first contention of Mr. Bhajan Singh Bhasaur, learned counsel for the petitioner, is that even though in the award of the Motor Accidents Claims Tribunal, the liability of the owner and the driver of the car was joint and several, the decree-holder had not tried to execute the decree against the driver, Karnail Singh, respondent No. 2. There is no substance in this contention. The decree being joint and several, it is open to the decree-holder to take out the execution to enforce the decree against one or both the judgment-debtors, in the facts and circumstances of the case, if there was a chance of realizing the amount, it could be against the owner of the car rather than the employee, who was a mere driver of that owner.

The next contention of Mr. Bhasaur is that since the question relates to the personal liberty of respondent No. 1 and he is threatened with arrest and detention in civil prison, the onus was very heavy on the decree-holder to show that respondent No. 1 had fraudulently or dishonestly parted with the possession of the car after the passing of the award. According to him, the decree-holder had failed to discharge that onus.

I have carefully gone through he judgment recorded by the learned District Judge. It is based on very sound reasoning and it cannot be said that the decree-holder had not discharged the onus of bringing the application within the four corners of Order 21, Rule 37 of the Code. The ownership of the car by Mohinder Singh, respondent No. 1 was not disputed in the claim petition. Though he pleaded that he had sold the car to a junk dealer of Patiala, he did not name that dealer. He did not examine the alleged purchaser. He did not produce any document to show that he had handed over the delivery of the car to the purchaser. In order to assess the evidentiary value of the evidence, one has to keep in one''s mind the human probability and normal course of conduct. If a car was sold by a person, one would expect the seller to take care that after the sale, he is not saddled with liability on account of his continuing to be shown as owner of the car in the registration books. In order to protect his rights, therefore, one would expect the seller to obtain an appropriate writing that he had sold the car and the purchaser had, taken delivery thereof. One would also expect the seller of the vehicle to in-form the Registering authority so that his liability to pay the token tax comes to an end and in case the car is misused by the purchaser, he is not held liable for any criminal or civil action. No such action was taken by respondent No. 1. On the contrary, he failed even to name the purchaser or to produce him in evidence in support of his allegation that he had sold the car. The judgment-debtor was further unable to explain how the token tax came to be deposited in respect of the said car which continued to be registered in his name on 2nd March, 1986. This fact goes to show that the car was still with respondent No. 1 during the pendency of the claim petition.

For the foregoing reasons, I find no merit in the revision petition which is accordingly dismissed with costs assessed at Rs. 500/-.

As prayed by Mr. Bhasaur, the judgment-debtor is given two weeks time from today in order to deposit the total amount in the executing Court, failing which he shall be got arrested and sent to civil prison as ordered by the trial Court.