Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 411 (MP)

Buddhi Bai v. Kriti Industries (India) Ltd.

2009-03-31

A.M.SAPRE, PRAKASH SHRIVASTAVA

body2009
ORDER Sapre, J. -- 1. By filing this writ under Article 227 of the Constitution of India, the claimant seeks to challenge the order dated 3.5.05/6.5.05 passed by Commissioner, Workmen Compensation (Labour Court Indore) in case No. 19/01 (WCF) P/1-C. 2. Facts of the case are these. 3. The petitioner is a claimant. She while working with respondent No.2 (non-applicant No.2) as a labourer sustained injuries. She, therefore, filed an application before the Commissioner, Workmen Compensation (Labour Court Indore) being case No. 19/01 under the Workmen's Compensation Act and claimed compensation for the injuries sustained by her during the course of employment and arising out of employment. It was filed against respondent because they were sued as principal employer and contractor involved in the work. On contest, the application was allowed. The Commissioner's order dated 6.5.04 awarded a total sum of Rs.2,24,000/- together with interest payable at the rate of 6% to the claimant for the injuries sustained by her. The award was passed jointly and severally against the respondents for a total sum of Rs.2,24,000/- with the interest at rate of Rs.6%. This is what was held and directed: (Para-8 ) ^^mijksDr lk{; ,oa foospu ds vuqlkj foi{khx.k 1 ,oa 2 dks funsZf"kr fd;k tkrk gS fd os izkFkhZx.k dks {kfr/ku ds :Ik esa vnk djus ds fy, :Ik;s 2]24]000@& ,oa bl ij 6% okf'kZd C;kt dh x.kuk nq?kZVuk fnukad ls vnk;xh fnukad rd dh djds leLr jde i`Fkd&i`Fkd :Ik ls rFkk la;qDr :Ik ls U;k;ky; esa tek djkosaA bl vkns"k ds ikyukFkZ foi{khx.k dks 60 fnu dk le; fn;k tkrk gSA** 4. This award became final because no one challenged the same in appeal. 5. Since the awarded sum was not deposited by the respondents i.e. judgment debtors and hence the claimant levied execution against the respondent for realization of awarded sum. Accordingly RRC was issued against the respondents for recovery of awarded sum. This led to deposit of part of the awarded sum i.e.Rs.1,37,978/- by respondent No.1 on the assumption that they have to deposit only their share in the awarded sum and which according to them was to the extent of Rs.1 ,37,978/-. Accordingly RRC was issued against the respondents for recovery of awarded sum. This led to deposit of part of the awarded sum i.e.Rs.1,37,978/- by respondent No.1 on the assumption that they have to deposit only their share in the awarded sum and which according to them was to the extent of Rs.1 ,37,978/-. The respondent No.1 thus on deposit of Rs.1,37,978/- contended that the award dated 6.5.09 so also the RRC issued is no more enforceable against respondent No.1 but it is now enforceable if at all only against respondent No.2 for recovery of the balance sum. It is this objection which was upheld by the Commissioner resulting in withdrawal of RRC so far as respondent No.1 was concerned. It is against this order, the claimant has felt aggrieved and filed this writ because the impugned order is not appealable under the provisions of Workmen's Compensation Act. 6. Heard Shri Sanjay Patwa, learned counsel for the petitioner and Shri G.S.Patwardhan and Shri Umesh Gajankush learned counsel for the respondents. 7. Having heard the learned counsel for the parties and on persual of record of the case we are inclined to allow the writ and quash the impugned order. 8. In our opinion, the Commissioner was not right in withdrawing the RRC as against respondent No.1 on the ground that they having deposited their so called share of Rs.1,37,978/- out of the total awarded amount they are not liable for the balance. The learned Commissioner failed to see that the award dated 6.5.04 was joint and several against both the non-applicants/ respondents and hence so long as it was not executed in its entirety for realization of entire awarded sum, the RRC could not have been withdrawn against of the non-applicants/respondents. 9. When a decree/award is passed by Court jointly and severally against more than one judgment debtors then it is the sole prerogative of the decree holder to execute such award/decree and recover the entire decretal amount from any of the judgment debtor. In other words if the decree/award is passed against A and B jointly and severally for a sum of Rs.1,000/- then it is for the decree holder to decide as to whether he should recover Rs.1,000/- either from "A or B". In other words if the decree/award is passed against A and B jointly and severally for a sum of Rs.1,000/- then it is for the decree holder to decide as to whether he should recover Rs.1,000/- either from "A or B". If however decree holder recovers entire decretal sum of Rs.1000/- from "A" then it is for the "A" to file a suit against "B" after satisfying payment of entire decretal amount to decree holder and claim contribution of his equal share from "B" in his suit contending therein that "A" having satisfied the whole decretal amount on his behalf i.e. "A" as also on behalf of "B", has acquired right to recover that part of the share which "B" was liable to pay but did not pay. But so far as rights of decree holder qua "A" and "B" are concerned, they are enforceable equally against both for realization of entire decretal sum. It is only when the decree itself specify the share of "A" and "B" qua decree holder for payment to him then in such event, the decree holder is not entitled to recover in excess of what is specified in the decree from such judgment debtor. In other words, where the decree itself specify that "A" is liable to the extent of Rs.400/- whereas "B" is liable to the extent of Rs.600/- to decree holder out of total decretal sum of Rs.1000/- then the decree holder is not entitled to recover entire Rs.1000/- either from "A" or "B" but has to recover only that sum specified in the decree. i.e.Rs.400/from "A" and Rs.600/- from "B". 10. It is a settled principal of law that executing Court cannot go behind the decree and has to execute the same as it is. In other words, the executing Court has no jurisdiction to amend die decree at the instance of any party to a decree nor has a jurisdiction to confer any additional right in favour of any party and nor has jurisdiction to take away right if granted in the decree. The executing Court is, therefore, expected to ensure that while interpreting the decree it should not result in violation of these settled principles else it would amount to amending the decree. 11. The executing Court is, therefore, expected to ensure that while interpreting the decree it should not result in violation of these settled principles else it would amount to amending the decree. 11. The expression "Joint and several" used in award enables the decree holder to proceed against one or both judgment debtor at his discretion for realization of entire decretal sum and such discretion cannot be interfered with by the executing Court at the instance of any of the judgment debtor qua decree holder in execution of decree. 12. Coming now to the facts of the case, and as stated supra the award , dated 6.5.04 was passed jointly and severally against 2 respondents without specifying therein their respective share in the awarded sum. A decree/award of such nature was therefore executable for recovery of entire awarded sum from anyone of respondents at the sole discretion of the decree holder leaving the judgment debtors to inter se work out their rights based on principle of contribution for realization of amount paid by one on behalf of other to decree holder in execution of decree by filing a suit. The executing Court had no jurisdiction in these proceedings to determine the rights of judgment debtors inter se that being not the question arising in execution of the decree at the instance of decree holder. 13. In the light of foregoing discussion, the impugned order directing withdrawal of RRC as against respondent No.1 on the ground that since they have deposited their so called share (Rs.l,37,978/-) out of total awarded sum and hence not liable to pay balance sum of decree holder is not legally and factually sustainable. It is liable to be set aside. 14. In this view of the matter, the petition succeeds and is allowed. Impugned order is set aside. As a result thereof, the petitioner is now free to recover the balance awarded sum jointly and severally from any of the respondents and is further free to withdraw the amount deposited by one judgment debtor (respondent No.1) in Court below. 14. In this view of the matter, the petition succeeds and is allowed. Impugned order is set aside. As a result thereof, the petitioner is now free to recover the balance awarded sum jointly and severally from any of the respondents and is further free to withdraw the amount deposited by one judgment debtor (respondent No.1) in Court below. We, however, make it clear that we have not decided the rights of judgment debtors inter se in this writ and hence as and when any occasion arises to determine the liabilities inter se judgment debtors in relation to decretal amount then the same shall be examined by the Competent Court at the instance of one judgment debtor as against other keeping in view the law applicable to the facts of the case on which the relief would be claimed by one judgment debtor against other.