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| M J Antony: Defeat in victory |
| M J Antony / New Delhi Aug 19, 2009, 00:42 IST |
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Though procedure is said to be the ‘handmaiden of justice’, sometimes she strangles it.
Contrary to the common notion, the travails of a litigant do not end with a decree in his favour. It is the beginning of another round of tiresome visits to the civil courts for execution proceedings. This long-winded process is required to give effect to the order of the court so that the reluctant debtors or other opposite parties comply with the ruling.
This complicated ritual is sanctified by Order 21 of the Civil Procedure Code. It is a provision containing more than a hundred general rules with additional doses of state amendments. All these land the litigant in a maze of clauses and sub-clauses. The West Bengal amendment, for instance, has more than 580 provisions in addition to the central rules for execution. According to Rule 150, when the disputed livestock are under attachment, the daily rates chargeable for keeping them are: Goats and pigs, 2 to 4 annas; ass, 3 to 5 annas; poultry, 2 to 3 annas 6 pies.
It is these kinds of rules which often make the execution proceedings last longer than the main case. In one Supreme Court case, Takkaseela Subba Reddi vs Pujari Padmavathamma, the decree was passed in 1949 and the appeal about the execution proceedings was decided by the Supreme Court in 1977. The story did not end there; the court merely remitted the matter to the executing court for an enquiry into disputed facts.
In rare cases, the Supreme Court cuts short the procedure, merely to do ‘complete justice’ using its extraordinary powers under Article 142 of the Constitution. Last fortnight, the court did so in two cases: New India Assurance vs Kusum; United India Insurance vs Darshan Singh. Both were motor vehicle accident cases in which the drivers had no proper licence to use the vehicles. The accident claims tribunal found the drivers and the vehicle owners liable to pay compensation to the dependents of the victims. The drivers and owners cannot be expected to shell out lakhs of rupees in damages immediately. Nor can the widow and children of the road victim expected to go after the hesitant parties till they get their money.
In such a situation, the tribunal normally asks the insurance company to pay the amount immediately to the dependents. The insurer is not strictly liable in law to pay the amounts, because driving a vehicle without a valid licence exempts them from liability. However, in the interest of justice and humanity, the tribunal asks the insurer to pay the damages to the dependents and then recover the amounts from the guilty drivers and the owners.
Here’s the rub. When the insurer asks the driver and the owner to recoup it, they show the book and argue that the insurers should go to a civil court to execute the decree of the tribunal. In the present cases, the executing courts and the respective high courts upheld their contention. In a regular civil suit, providing evidence by way of documents is strict. The Delhi high court further observed that “the owner can dispute his liability on the plea that he had taken all necessary steps to see that the driver had a licence and he had no means to find out that the same was fake.” This would require another round of litigation for half the lifetime of the widow and children.
Mercifully, the Supreme Court has now declared that such a long and costly route to enforce the decree should not be insisted. It recalled a little known edict propounded in National Insurance Company vs Baljit Kaur (2004) that “for the purpose of recovery, it would not be necessary for the insurer to file a separate suit.” This was reiterated in Oriental Insurance Company vs Shri Nanjappa. Last year, the court used its extraordinary jurisdiction under Article 142 (‘to do complete justice’) and asked the insurer to pay the dependents, as “he hailed from the lowest strata of society”, and then recover the amount from the owner (Dedappa vs National Insurance Company).
Though these cases under the Motor Vehicles Act have struck a new path, in the matter of property disputes and other civil cases, execution proceedings continue to be a blight on the winning litigants. Most people do not understand the need for a second round of litigation, but the lawyers cannot imagine how a decree could be enforced without an executing order.
Jurists and the legal profession are fond of repeating that “procedure is the handmaiden of justice” and the cobwebs of procedural law should give way to substantial justice. However, the law-makers have not found a way to simplify the procedure for implementing court orders. The task is stupendous and there is bound to be stiff resistance from the legal fraternity who would lose the most from such reforms.
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