The Secretary, Balussery Grama ... vs Kunnummal Veettil Pathumma
2022 Latest Caselaw 5815 Ker

OP(C) NO. 2938 OF 2019
                                  1
              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
    TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                        OP(C) NO.2938 OF 2019
   AGAINST THE ORDER DATED 19.12.2018 IN E.P. 28/2017 IN        OS
                   36/1995 OF SUB COURT, QUILANDY
PETITIONER:

            THE SECRETARY, BALUSSERY GRAMA PANCHAYATH,
            BALUSSERY AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE-
            673612.

            BY ADV SRI.M.G.SREEJITH


RESPONDENTS:

    1       KUNNUMMAL VEETTIL PATHUMMA,
            AGED 68 YEARS
            W/O.LATE MOIDEENKOYA, UNNIKULAM AMSOM, DESOM,
            THAMARASSERY TALUK, KOZHIKODE-673574.

    2       KUNNUMMAL VEETTIL SHAMSUDHEEN,
            AGED 46 YEARS
            S/O.LATE MOIDEENKOYA, UNNIKULAM AMSOM, DESOM,
            THAMARASSERY TALUK, KOZHIKODE-673574.

            BY ADVS.
            TITUS MANI
            BINNY THOMAS
            P.A.JACOB
            SWAROOP A.P.




     THIS     OP   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION    ON
31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 2938 OF 2019
                               2
                                                         "C.R"
                         JUDGMENT

Is a decree holder entitled to selectively execute a

decree against one of the judgment debtors is the short

point that arises for consideration in this original petition?

2. The petitioner's case, shorn of exhaustive

pleadings in the original petition, is that; the petitioner is a

Panchayat and the judgment debtor in E.P. No.28/2017 in

O.S No.36/1995 of the Court of the Subordinate Judge,

Koyilandy. The respondents are the decree holders in the

execution petition. The respondents had filed the suit

seeking compensation from the petitioner and three other

persons on account of the death of the 1 st respondent's son

'Shereef' in an accident that occurred on 8.2.1992 at the

Live Stock Health, Agricultural and Industrial Exhibition.

The deceased lost his life due to the detachment of the

basket of the Giant Wheel. The petitioner was the 2 nd

defendant in the suit. The defendants 1, 3 and 4 were the OP(C) NO. 2938 OF 2019

operator, the licensee, and the Exhibition's Convenor,

respectively. The respondents asserted that the accident

occurred due to the defendants' negligence, who were

jointly and severally liable to pay the compensation. The

Trial Court decreed the suit by directing the defendants to

jointly and severally pay the respondents an amount of

Rs.1,72,000/-. The petitioner and the 4 th defendant

independently challenged the judgment and decree before

this Court. This Court, by its common judgment in A.S

Nos.530/1999 and 355/1999, dismissed the appeals and

confirmed the judgment and decree but reduced the

compensation amount. The defendants were jointly and

severally directed to pay the respondents an amount of

Rs.1,57,000/-. The respondents have put the decree to

execution by only arraying the petitioner as the judgment

debtor. Even though the petitioner has filed an objection,

challenging the maintainability of the execution petition,

the execution court has brushed aside the same and passed

Ext.P3 ordering the attachment of the movable property of OP(C) NO. 2938 OF 2019

the petitioner. Ext.P3 is erroneous and is liable to be set

aside. Hence the original petition.

3. Heard; Sri.M.G.Sreejith, the learned appearing

for the petitioner and Sri. Titus Mani, the learned counsel

appearing for the respondents.

4. Sri.M.G.Sreejith argued that Ext.P3 is patently

wrong because the Execution Court has failed to consider

the maintainability of the execution petition. The

respondents cannot selectively execute the decree against

one of the defendants in the suit. The petitioner is liable to

pay only 1/4th of the decree amount. As the respondents

have proceeded against the petitioner, they would be

compelled to pay the entire decree debt.

5. Sri. Titus Mani supported Ext.P3 order. He

contended that there is no prohibition in the Code of Civil

Procedure restricting the decree holder from executing a

decree against all or any of the defendants, particularly

when the decree specifies joint and several liability. The OP(C) NO. 2938 OF 2019

decree holder can choose against which of the defendants

the decree is to be executed. The original petition is

without merit and may be dismissed.

6. This Court and the Trial Court have concurrently

found that the accident occurred due to negligence of all

the defendants and, therefore, they are jointly and

severally liable to pay the compensation amount to the

respondents.

7. The law regarding joint tortfeasors' liability is of

vintage and well settled.

8. It is worth extracting the passage from Law of

Torts by Winfield and Jolowicz (17 th edition) 2006. The

learned author after referring to Performance Cars Ltd. v.

Abraham [1962 (1) QB 33], Baker v. Willoughby 1970 A.C.

467, Rogers on Unification of Tort Law: Multiple

Tortfeasors; G.N.E.R. v. Hart [2003] EWHC 2450 (QB),

Mortgage Express Ltd. v. Bowerman and Partners 1996 (2)

All E.R. 836 etc. has observed thus:

OP(C) NO. 2938 OF 2019

"WHERE two or more people by their independent breaches of duty to the claimant cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury the position is more complicated. The law in such a case is that the claimant is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. If the claimant sues Defendant A but not B and C, it is open to A to seek "contribution" from B and C in respect of their relative responsibility but this is a matter among A, B and C and does not affect the claimant. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It may be greatly to the claimant's advantage to show that he has suffered the same, indivisible harm at the hands of a number of Defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one Defendant is insolvent (or uninsured) and being unable to execute judgment against him. Even where all participants are solvent, a system which enabled the claimant to sue each one only for a proportionate part of the damage would require him to launch multiple proceedings, some of which might involve complex issues of liability, causation and proof. As the law now stands, the claimant may simply launch proceedings against the "easiest target". The same picture is not, of course, so attractive from the point of view of the solvent Defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. Thus a solicitor may be liable in full for failing to point out to his client that there is reason to believe that a valuation on which the client proposes to lend is suspect, the valuer being insolvent; and an auditor will be likely to carry sole responsibility for negligent failure to discover fraud during a company audit. A sustained campaign against the rule of joint and several liability has been mounted in this country by certain professional bodies, who have argued instead for a regime of "proportionate liability" whereby, as against the claimant, and not merely among Defendants as a group, each Defendant would bear only his share of the liability. While it has not been suggested here that such a change should be extended to personal injury claims, this has occurred in some American jurisdictions, whether by statute or by judicial decision. However, an investigation of the issue by the Law Commission on behalf of the Dept of trade and Industry in 1996 led to the conclusion that the present law was preferable to the various forms of proportionate liability".

9. Winfield in Law of Torts (8th edition) 661 has

stated the English Law as follows:

OP(C) NO. 2938 OF 2019

"The liability of joint tortfeasors is joint and several, each may be sued alone, or jointly which some or all the others in one action; each is liable for the whole damage, and judgment obtained against all of them jointly may be executed in full against any one of them".

10. In Palghat Coimbatore Transport Co. Ltd. v.

Narayanan [MANU/TN/0032/1938 : ILR (1939) Mad. 306],

the Madras High Court has held thus:

"4. .......... the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, the Plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole damage...............".

11. The Hon'ble Supreme Court in T.O.Anthony v.

Karvarnan and others [2008 (3) KLT 431] has held thus:

"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence".

OP(C) NO. 2938 OF 2019

12. The Code of Civil Procedure does not insist a

decree holder to implead all the defendants in the suit as

the judgment debtors in the execution petition to execute a

joint and several decree. It is the decree holder's

autonomy to choose against which of the defendants he

desires to execute the decree when their liability is joint

and several.

13. On an analysis of the provisions of the Code of

Civil Procedure and the law referred to above, I do not find

any error or illegality in the Execution Court ordering the

attachment of the movable property of the petitioner alone.

No ground is made out warranting the exercise of the

supervisory jurisdiction of this Court under Article 227 of

the Constitution of India.

The Original Petition is devoid of any merits and is

hence dismissed.

ma/4.6.2022                           Sd/-C.S.DIAS,JUDGE
 OP(C) NO. 2938 OF 2019

                  APPENDIX OF OP(C) 2938/2019

PETITIONER EXHIBITS

EXHIBIT P1            TRUE COPY OF THE JUDGMENT PASSED BY THIS
                      HONOURABLE COURT IN A.S.NO.530/1999.

EXHIBIT P2            TRUE COPY OF THE E.P.28/2017 IN O.S.
                      36/1995 BEFORE THE COURT OF SUBORDINATE
                      JUDGE, QUILANDY

EXHIBIT P3            TRUE COPY OF THE ORDER DATED 19.12.2018 IN
                      E.P.28/2017 IN O.S.36 OF 1995 ON THE FILES
                      OF THE SUB COURT, QUILANDY.