Jharkhand High Court
R.K. Pathak vs Hind Tools & Dies Pvt. Ltd. And Ors. on 20 January, 2003
Equivalent citations: [2003(97)FLR925], [2003(2)JCR329(JHR)], (2003)IILLJ999JHAR
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. Heard Mr. R.K. Choudhary, learned counsel for the appellant and Mr. S.N. Lal learned counsel for the respondent-bank. No body appears on behalf of the respondent-Hind Tools & Dies Pvt. Ltd.
2. The appellant has challenged the order dated 7.5.1997 passed by Sub-Divisional Judicial Magistrate Saraikela entertaining the objection of the respondent-bank filed under Order XXI, Rule 58, CPC and passing the impugned order in execution case No. 2/96.
3. The appellant is representing the employees of the respondent M/s. Hind Tools and Dies Pvt. Ltd. It appears that the Labour Court Jamshedpur passed an order under Section 15 of the Payment of Wages Act directing for payment of wages to a large number of workers working in the factory of the respondent M/s. Hind Tools and Dies Pvt. Ltd. The said order was challenged by the company before this Court in CWJC No. 3421 of 1995(R) which was dismissed on 20.3.1995 and the said order was affirmed in LPA being LPA No. 102/96. It is stated by the appellant that the company did not challenge the order before the appellate authority as provided under Section 17 of Payment of Wages Act.
4. During the pendency of the matter before the Labour Court under Section 15 of the said Act an order was passed under Section 17A of the said Act and the property of the company was attached. The appellant thereafter approached the Labour Court for recovery of the awarded amount by putting the property of the company in auction sale. The Labour Court by order dated 3.4.1996 referred the matter to the Sub-divisional Judicial Magistrate Saraikella for executing the award and for recovery of the awarded amount.
5. It appears that on receipt of requisition from the Labour Court the Sub-divisional Judicial Magistrate, Saraikella registered a case being execution case No. 2/96. In the said execution proceeding the respondent-Bank filed an objection under Order XXI, Rule 58, CPC raising objection that the property of the company is under attachment by the Civil Court in Money Suit No. 82/93 filed by the bank against the company for the recovery of the loan amount.
6. The Sub-divisional Judicial Magistrate Saraikella taking the view that the bank is a secured creditor and the property of the company is under attachment, held that there cannot be re- attachment of the property. The relevant portion of the impugned order is quoted here in below :
"Heard the submission made by the learned lawyer on behalf of the bank and the judgment debtor. It is evident that the bank is a secured creditor of the factory (O.P. No. 2) who when failed to clear the outstanding dues of the bank, was proceeded in the capacity of the defendant in the money suit filed by the bank in the Court of Sub-judge, Jamshedpur, (M.S. 82/93) whereupon the Court has passed order for attaching the property of the judgment debtor and order for attaching the same was passed accordingly."
7. In the objection petition filed by the bank on 7.2.1997 it is stated in paragraph 12 that the petition for attachment before judgment was taken for hearing on 19.4.1994 in presence of both the parties and the Sub-Judge passed the order in the open Court that the Schedule properties were being attached before judgment but due to inadvertence the entire order sheet was not incorporated in Money Suit No. 82/93. It is further stated that this fact was brought to the notice of the Court by filing a petition on 20.1.1997 and the petition for attachment before judgment was heard and the Court fixed the date on 7.2.1997 for passing necessary order. It is therefore, clear that on 7.5.1997 when the impugned order was passed by the SDJM no order of attachment before judgment said to have been passed by the Sub- Judge Civil Court in the Money Suit was before him.
8. As noticed above, the property of the company was already under attachment in 1993 by the labour Court before passing the final order under Section 15 of the Act. The SDJM therefore, not only committed error of fact but also committed error of law in passing the impugned order refusing to execute the award which was sent to him for the recovery of the awarded amount.
9. For the aforesaid reason this appeal is allowed and the impugned order dated 7.5.1997 passed by the SDJM Saraikella in execution case No. 2/96 is set aside. The SDJM is accordingly directed to proceed with the execution case in accordance with law.