IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.427 of 2006 LAL BAHADUR SINGH, @ lal Bahadur Sinha, S/o – Late Nawab Lal Sinha, resident of village – Parsa Bazar, P.S. – Phulwari Sharif, District – Patna. ----- Defendant- Petitioner-Appellant. Versus 1. KUMARI SUSHILA SINHA, W/o – Late Ram Janam Ram 2. Manish Kumar 3. Santosh Kumar Both Nos. 2 and 3 are sons of Late Ram Janam Ram 4. Sweta Kumari 5. Samta Rani 6. Mamta Rani All no. 4 to 6 are D/o – late Ram Janam Ram All resident of village – Shahleshpuri Chouharmal, P.S. – Phulwarisharif, District – Patna. ------ Plaintiffs-Opposite Parties-Respondents. ****** For the Appellant : Mr. Devendra Kumar Sinha,Sr.Adv. Mr. Abhinay Raj,Adv. ******* 11 21.07.2010 Heard learned counsel for the appellant. 2. Perused the lower court records. In spite of service of notice, there is none to represent the respondents. 3. This appeal has been preferred against order dated 20.09.2006 passed by Additional Judge, F.T.C. No. 5, Patna in Miscellaneous Case No. 3/2006, dismissing the application preferred under Order IX Rule 13 and section 151 of the Civil Procedure Code by the appellant praying therein to set aside ex parte - 2 - order dated 18.03.1996 passed in Motor Accident Claim Case No. 76/1992. 4. After examining thoroughly the record of lower court, the learned counsel for the appellant submits that there was no notice served upon the appellant owner of ill-fated truck and ex parte award was passed, but, since no interest was awarded to the claimant respondent, she preferred M.A. No. 223/1996, which was allowed by this court vide order dated 21.03.1997, wherein it has clearly been held that notices against the respondents were validly served but none appeared. This court awarded interest consequently the award of the court below stands modified. It is further undisputed and borne out of the record that aforesaid copy of the order of this court was received to the court below on 12.01.1998 itself. 5. The appellant here has come out with the case that on getting information about the ex parte order of the court below, he got the record inspected through his counsel in the year 2006 only thereafter Miscellaneous Case No. 3/2006 was filed. On going through the - 3 - contents of the application, learned counsel for the appellant left with no option but to concede that there is nothing mentioned in the application as regard to M.A. No. 223/1996. But he tried his level best to explain by submitting that perhaps, the appellant was not communicated by his agent inspecting the record about orders of this court referred to above, but, this submission is not acceptable, in absence of anything pleaded at any point of time either before the court below or in this appeal. 6. The court below has, on consideration of evidence and materials available on record including orders of this court, modifying the award on the basis whereof, the impugned award merged in the order of this court, accordingly dismissed the appeal. 7. It further appears from the Lower Court Record that at the instance of award holder vide Memo No. 24 dated 21.02.2002 certificate for realization of amount so awarded with interest has already been issued and sent to Certificate Officer, Patna, perhaps matter is pending there. - 4 - 8. Since no irregularity or illegality could be pointed out. This appeal is devoid of any merit, accordingly it is dismissed. However, taking into consideration the submission of learned counsel for the appellant that the vehicle in question was insured. The appellant is directed to make payment, positively within two months from today, of the award amount with interest as ordered and if at all vehicle was insured at the relevant time, he may initiate proceeding against insurer to realize the amount so paid, if permissible under law. Rajeev/ (Akhilesh Chandra, J.)