Shyam Saxena vs Manish and Another

Anil Sharma, J.—This case is listed for hearing on MCP No. 1738/04 which is an application for staying the execution of the impugned award. Considering the short question involved in this appeal and further considering the fact that this is an admitted appeal, heard finally.

This appeal has been filed under Order 43 Rule 1(d) of the CPC against the order (Annexure-A/1) dated 24.02.2004 passed by II Additional District Judge, Sehore in MJC No. 21/03 rejecting the application under Order 9 Rule 12 read with Section 151 of the CPC for setting aside ex-parte award passed in Claim Case No. 22/99.

Learned counsel for the appellant has submitted that against the same accident, several claim petitions have been filed and award has been passed ex-parte against the appellant. In one of such appeal being MA No. 1178/2004, ex-parte award passed by the Tribunal has been set-aside by the order dated 13.01.2005.

Since, this case also relates to same accident in which claim has been filed by the other victim and award has been passed on the same date i.e. on 24.02.2004, this appeal deserves to be allowed.

Operative portion of the order passed in MA No. 1178/2004 dated 13.1.2005 is re-produced hereinbelow:-

Heard the arguments and perused the record. Learned counsel for the appellant placed reliance on a decision reported in G.P. Srivastava Vs. Shri R.K. Raizada and Others, , wherein the Hon''ble Supreme Court has laid down that even in the case of negligence the other side can be compensated by costs. In view of the aforesaid position of law and also in view of the fact that the copy of the award has not been sent to the appellant, which is a mandatory requirement of Section 168(2) of the M.V. Act, this appeal is allowed upon furnishing of security bond to the effect that in case any award is passed, the same will be satisfied by the appellant for a sum of Rs. 30,000/- for which the ex-parte award has been passed by the learned Tribunal and also upon payment of cost of Rs. 1000/-. The impugned order dated 24.2.2004 passed in MJC No. 18/03 is set-aside. Consequently, the impugned award passed in MJC No. 24/99 dated 21.9.2000 so far as appellant is concerned, is also set-aside.

No order as to costs.

Considering the aforesaid finding, this appeal is also decided in terms of the order passed in MA No. 1178/2004 dated 13.1.2005 by this Court.

Resultantly, this appeal is allowed upon furnishing of security bond to the effect that in case any award is passed, the same will be satisfied by the appellant for a sum of Rs. 30,000/- for which the ex-parte award has been passed by the learned Tribunal and also upon payment of cost of Rs. 1000/-. The impugned order dated 24.2.2004 passed in MJC No. 21/03 is set-aside. Consequently, the impugned award passed in MCC No. 22/99 dated 21.9.2000 so far as appellant is concerned, is also set-aside. No order as to costs.

CC as per rules.