Point of Law : 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.

JUDGMENT :

Is it permissible for a decree holder 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 1st 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 2nd defendant in the suit. The defendants 1, 3 and 4 were the 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 4th 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 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 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 (17th 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 :

“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 w