Per Mr.Justice S.B.Mhase, Hon’ble President.

This execution petition is filed by the original complainant in consumer complaint no.167/1995 decided by the State Commission. This application has been filed under section 25(3) for getting a certificate.

By this application, complainant has prayed that the certificate under section 25(3) of Consumer Protection Act, 1986 be issued in view of decision in consumer complaint no.167/1995 dated 01/8/1997.  By this order the State Commission has ordered that the complainant do recover Rs.11,11,763/- with 18% interest thereon from 17/1/1995 till payment, plus cost of Rs.30,000/- from the O.P.  This order was passed on 01/8/1997.  The Opponent /Associated Road Carriers Ltd. thereafter challenged the said order by filing an Appeal no.125/1998. Said appeal was decided by the National Commission on 22/11/2006.  National Commission has allowed the appeal filed by the opponent and, thus, the order which was passed by the State Commission on 01/8/1997 was set aside.  Thereafter, National Insurance Co.Ltd. namely complainant no.2 filed Civil Appeal no.1712 of 2007 before the Supreme Court of India.  Said civil appeal was decided by the Supreme Court on 23^rd March, 2010. The apex court has set aside the decision of the National Commission in the light of the decision of the Constitution Bench in Economic Transport Organisation v/s. Charan Spinning Mills (P) Ltd. and another and consequently appeal was allowed.  Impugned order was set aside and the matter was remitted back to the National Commission for fresh consideration and disposal of appeal in accordance with the law.

Under these circumstances, application under section 25(3) of Consumer Protection Act, 1986 has been filed by the complainant. What we find that after Appeal no.125/1998 was decided by the National Commission, the order of the State Commission passed in complaint merged into the appellate order and, resultantly, the said order was set aside. When the matter went to the Supreme Court, Supreme Court having found that Constitution Bench judgement was not followed has remitted back the matter and set aside the order of the National Commission.  However, as a result of setting aside order of the National Commission, it cannot be said that the order of the State Commission has revived for the execution.  Matter as it stands is that that the said order of the State Commission stands merged into an order of the National Commission  when the National Commission’s order was set aside by the apex court, the order which is already merged into the order of Appeal no.125/1998 cannot revive.  Merger of order once taken is effective till  the fresh orders are passed by the appropriate authority. Therefore, as on today there is no order in existence so far as complainant is concerned. However, it will be open for the complainant in case National Commission decides the appeal in favour of the complainant and restores the order which is merged into earlier appellate order.  Unless and until the National Commission or the Supreme Court in appropriate proceeding restores the order passed by the State Commission, execution will not be permissible and, therefore, execution application at this stage is not tenable.  However, applicant/complainant may file execution application, if ultimately the orders are passed in his favour in the said proceedings which are executable in his favour.  Execution application stands disposed of with liberty to file appropriate execution application if occasion arises.