HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 73 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) challenging the impugned orders dated 10.08.2022 and order dated 17.11.2022 passed by the Learned District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat in connection with Execution Case No. EA/96/2011 filed by the opposite parties by which the appellant was directed to comply fully the judgment of the complaint case by 5^th September, 2022 or else decree holder will be given liberty to proceed under section 71 & 72 of the Consumer Protection Act, 2019 and by which order of W/A will be issued against the appellant.

2. The short fact of the case is that decree holder / respondent filed a complaint case being No. CC/10/2011 against the appellants / Jdrs on the allegation of deficiency in service on the part of the appellants / Jdrs in a consumer dispute.

3. The said complaint case was allowed and the appellants / Jdrs did not comply the order passed by the Learned District Commission below. Thereafter, the respondents / complainants filed an Execution Case being No. EA /96/2011 before the Learned District Commission below.  The appellants / Jdrs appeared before the Executing Court and did not comply the order of the Executing Court. As such, the appellants / Jdrs was / were directed to comply fully the judgment of the complaint case by 05.11.2022. Since the appellants / Jdrs did not comply with the order of the District Commission and the appellant / Jdrs did not return the gold or refund the money with interest as per the judgment, order of W/A was issued against the Jdr No. 2.

4. Being aggrieved by and dissatisfied with the said order of W/A the appellants / Jdrs have preferred this appeal. Learned Commission below has committed an error to reject the application dated 17.11.2022 filed by the appellants / Jdrs in sending the documents to the handwriting expert or to procure the expert opinion. Learned Lawyer appeared for the appellants has further urged that the Learned District Commission has traversed beyond the ambit scope and jurisdiction to act as an expert to the documents in question and place its observation without any cogent grounds or any iota of evidence.  He has further submitted that the interim order dated 10.08.2022 merged into the interim order dated 17.11.2022 passed by the Learned District Commission are liable to be set aside. So, the revision application should be allowed.
5. Sub section 1 of Section 72 of the Consumer Protection Act, 2019 runs as follows :-

“Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.”

6. Section 73 of the Consumer Protection Act, 2019 runs as follows :-

“73. (1) Notwithstanding anything contained in the Code of Criminal Procedure  1973, where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from – 

(a) the order made by the District Commission to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c )the order made by the  National Commission to the Supreme Court,

(2)  Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of order of a District Commission or a State Commission or the National Commission, as the case may be :

Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days.”

7. From the conjoint reading of section 72 (1) and 73 of the Act, it is clear that an appeal under section 73 can lie before the State Commission on facts of law, if an order of conviction and sentence is passed under section 72(1) of the Act by the District Commission as against the order of conviction and sentence made by the State Commission, an appeal can be preferred to the National Commission, an order of conviction and sentence by the Hon’ble National Commission would be appealable before the Supreme Court. It appears that the instant appeal has been filed challenging the order of issue of W/A. It further appears to us that no order of sentence or imprisonment was passed by the Learned District Commission and no order of sentence or imprisonment has been assailed before this Commission and has not been brought on record. As such, this appeal under section 73 of the Act is a premature one since the appeal under section 73 of the Act is maintainable only if the order of sentence or imprisonment is passed and not mere issue of W/A. In this particular case, the District Commission has merely issued W/A against the appellants / Jdrs. Therefore, the appeal under section 73 of the Act will not be maintainable against the order of issuing W/A to secure the presence of the appellants in the Execution case.

8. Further, setting aside of an order of issuance of process in Execution Case without having proper jurisdiction by this Commission will cause unnecessary delay in execution of an order which has reached its finality long ago.

9. Unless, the order of the National Consumer Disputes Redressal Commission, in appeal case No. 104/2021 reported in 2021 SCC online NCDRC 418 could be mentioned wherein the question of appeal before the Hon’ble National Commission from the order of issuance of process of bailable warrant in connection with application under section 72 of the Act was challenged. After an elaborate discussion, the National Commission was pleased to dismiss the appeal in limini as maintainable. Therefore, considering the facts that this appeal has been preferred against an order of issuing process for production and not for an order of penalty under section 72(1) of the Act, we are of the view that this appeal deserves to be dismissed in limini as not maintainable. This apart, on perusal of the record it appears to us that office has submitted a report that this appeal has been filed with a delay of 109 days. To explain the said delay, the appellant has filed an application for condonation of delay. In the said application for condonation of delay, the appellant has stated that the appellant was contracted acute Covid in the year 2021 and thereafter, he was suffering from an often restlessness and also developed cardiological and respiratory ailments. But the record goes to show that the said application is not supported by any medical certificate. So, the averments of the complainant is nothing but an attempt to mislead this Commission. Therefore, it may be concluded that delay in filing the instant appeal has not been explained properly. So, the appeal is also barred by limitation.

10. In the result, the appeal is dismissed in limini as not maintainable.

11. The impugned orders are hereby affirmed.

12. Let a copy of this order be sent to the Learned District Commission at once.

13. The appeal is, thus, disposed of accordingly.