HON’BLE MR. DINESH SINGH, MEMBER 1. Heard learned counsels for both sides. Perused the material on record. 2. The dispute in consumer complaint no. 139 of 2014 was related to execution of sale – deed and delivery of possession of the subject plot. 3. The State Commission had disposed of the said consumer complaint vide its Order dated 18.04.2016: Order 18.04.2016 Consumer Complaint No. 139 of 2014 In view of the statements of the counsel for the parties, which have been separately recorded, the complaint is allowed and the opposite parties are directed to deliver the possession of fully developed Plot No. 2, situated in Sector 112, S.A.S. Nagar, Mohali, Punjab and to execute the sale deed in respect thereof in favour of the complainant within 15 days of this order. The complainant is allowed Rs.11,000/- as costs of litigation, which is to be paid by the opposite parties within 15 days. Sd/- President Sd/- Member The above Order dated 18.04.2016 was based on statements dated 18.04.2016 and 18.04.2016 by the learned counsels for the two sides: Statement 18.04.2016 Consumer Complaint No. 139 of 2014 Statement of Sh. Gautam Bhardwaj, Advocate, Counsel for the complainant I have heard the statement of the counsel for the opposite parties and the complaint be decided on the basis of that statement directing the opposite parties to deliver the possession of the plot and to execute the sale deed thereof within 15 days. RO&AC Sd/- President Sd/- Member Statement 18.04.2016 Consumer Complaint No. 139 of 2014 Statement of Sh. S.K. Attri, Advocate, Counsel for the opposite parties. The opposite parties have fully developed plot No. 2 in Sector 112, SAS Nagar, Mohali, Punjab and are in position to deliver the possession to the complainant immediately and are also ready to execute the sale deed in favour of the complainant at any time when asked for by him without payment of any further amount as all the amounts payable by the complainant stands already deposited. RO&AC Sd/- President Sd/- Member 4. The Order dated 18.04.2016 of the State Commission is in the nature of a ‘consent order’, based on the mutual consent of the two sides. The Order directs for execution of sale-deed and delivery of possession of the subject plot to the complainant. The Order has not been agitated. It has attained finality within the meaning of section 24 of the Act 1986. 5. Execution was filed by the complainant before the State Commission. The concerned execution application no. 60 of 2016 was disposed of vide the Order dated 03.04.2017: Execution 03.04.2017 Execution Application No. 60 of 2016 in Consumer Complaint No. 139 of 2014 Learned counsel for the complainant submits that the compromise has been effected between the parties vide compromise deed Ex. C-X. In view of the statement of the counsel for the complainant/DH, which has been separately recorded, the execution application is dismissed as infructuous with liberty to the applicant to file a fresh execution in accordance with provisions of Consumer Protection Act, 1986 in case terms of compromise are not complied with. In view of the statement of both the parties, cheque No. 000985 dated 17.03.2017 amounting to Rs.30,00,000/- of HDFC Bank has been handed over to respondent / JD, which was deposited by the respondent / JD on 17.03.2017 with this Commission. 6. The Order dated 03.04.2017 in execution proceedings is based on a ‘compromise deed’ dated 01.04.2017 entered into between the complainant – decree holder and the opposite party – judgment debtor. The execution application was dismissed as infructuous with liberty to the applicant to file a fresh execution in accordance with the provisions of the Consumer Protection Act, 1986 in case the terms of the ‘compromise’ are not complied with. 7. The Order dated 18.04.2016 in the consumer complaint no. 139 of 2014 directs for execution of the sale-deed and delivery of possession of the subject plot to the complainant. The ‘compromise deed’ dated 01.04.2017 mutually agrees for refund of the deposited amount with interest, compensation and litigation fee, together quantified at a total sum of Rs. 49 lakh as full and final ‘settlement’. That is, the ‘compromise’ dated 01.04.2017 is significantly and materially at variance with the final Order dated 18.04.2016. 8. Execution was then again filed by the complainant before the State Commission. In this subsequent execution application no. 107 of 2017, the Orders dated 09.11.2017 and 02.02.2018 were passed: Execution 09.11.2017 Execution Application No. 107 of 2017 In Consumer Complaint No. 139 of 2014 Present: For the applicant /DH : Sh. Sandeep Bhardwaj, Advocate For the OPs/JDs : Sh. S. K. Garg, Advocate Learned counsel for the applicant /DH has filed application alongwith list of property of the OPs/JDs, which is ordered to be taken on record. Warrants of attachment alongwith list of property along with Jamabandi submitted by the applicant be issued to the District Collector, SAS Nagar for attachment of share of JD under Section 25 of the Consumer Protection Act and submit the report on or before the date fixed. Adjourned to 30.11.2017 for further proceedings. Sd/- President Sd/- Member Execution 02.02.2018 Execution Application No. 107 of 2017 In Consumer Complaint No. 139 of 2014 Present: For the applicant /DH : Sh. Sandeep Bhardwaj, Advocate For the OPs/JDs : Sh. S. K. Garg, Advocate Heard. As per the compromise deed dated 01.04.2017, post dated cheques were given and the matter was compromised as per the order dated 03.04.2017 on the statement of Sh. Kanwaljit Singh Ahluwalia, JD. Counsel for the applicant/DH submits that three cheques have been dishonoured so for that reason the remaining cheques were not presented. In view of the above, we deem it appropriate to issue a certificate of recovery to the District Collector, SAS Nagar Mohali for a sum of Rs.55.00 Lacs and the property as mentioned in the Jamabandi be also sent alongwith the certificate. Property of Sh. Kanwaljit Singh Ahluwalia as well as M/s R. K. M. Housing Ltd. be sold and amount be deposited in this Commission. In the meanwhile, DH is directed to give the detail of amount for effecting recoveries. DH is also at liberty to give the detail of the Bank account of OPs/JDs for attaching the same, if so desires. Adjourned to 28.02.2018 for further proceedings. Sd/- President Sd/- Member 9. The Orders dated 09.11.2017 and 02.02.2018 are towards enforcing the ‘compromise’. 10. Appeal execution no. 26 of 2018 has been filed by the builder co. against the Order 03.04.2017 of the State Commission passed in the first execution application no. 60 of 2016, and revision petition no. 613 of 2018 has been filed by the builder co. against the Orders dated 09.11.2017 and 02.02.2018 of the State Commission passed in the subsequent execution application no. 107 of 2017. 11. The first execution application no. 60 of 2016 was filed by the complainant to execute the final Order dated 18.04.2016 of the State Commission in consumer complaint no. 139 of 2014. During the course of the proceedings, a ‘compromise deed’ dated 01.04.2017 was entered into between the complainant and the builder co. and placed before the State Commission. The State Commission vide its Order dated 03.04.2017 dismissed the execution application as infructuous and provided liberty to the complainant to file a fresh execution in case the terms of the ‘compromise’ were not complied with. Subsequently the complainant filed a second execution application no. 107 of 2017 to get the ‘compromise’ executed. Orders dated 09.11.2017 and 02.02.2018 were passed in this second execution application no. 107 of 2017, whereby warrant of attachment of property was issued and then certificate of recovery for a sum of Rs. 55 lakh was issued to the District Collector. 12. We explicitly and categorically state that the executing court cannot go outside the award made in the final Order, it cannot modify or amend the award. In case of ‘compromise’ between the decree holder and the judgment debtor, the decree holder may, if he so wishes, voluntarily, on his own volition, refrain from pressing execution of the final Order i.e. he may not get the final Order executed. However, the decree holder cannot, by mutual understanding with the judgement debtor or otherwise, arrive at a ‘compromise’ (or any other arrangement) that is significantly and materially at variance with the final Order and require the executing court to execute it. Nor can the executing court execute any such ‘compromise’ (or arrangement). 13. We, therefore, find that the liberty provided to the decree holder to file a fresh execution in case the terms of a ‘compromise’ significantly and material at variance with the final Order were not complied with to be erroneous. Initiating and undertaking proceedings on a fresh subsequent execution application to execute the ‘compromise’ is also erroneous. 14. During the course of arguments on 08.02.2019, learned counsel for the complainant argued that the Order dated 03.04.2017 as well as the Orders dated 09.11.2017 and 02.02.2018 have been passed within the ambit of section 27 of the Act. 15. We may here first reproduce section 27 as well as section 25 of the Act 1986: 27. Penalties. — (1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant 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 two thousands rupees but which may extend to ten thousand rupees, or with both: (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974). (3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. 25. Enforcement of orders of the District Forum, the State Commission or the National Commission. — (1) Where an interim order made under this Act, is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached. (2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (3) Where any amount is due from any person under an order made by a
District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue. 16. Section 27 speaks of punishment of imprisonment or fine or both in case of failure or omission to comply with an order of a consumer forum. It nowhere provides space to the executing court to modify or amend the final Order under execution, including on the basis of any ‘compromise’ said to have been arrived at between the decree holder and the judgment debtor. The Order dated 03.04.2017 is bad since it provided liberty to the decree holder to file a fresh execution in case the terms of a ‘compromise’, significantly and materially at variance with the final Order, told to have been arrived at between the decree holder and the judgment debtor, were not complied with. 17. We also observe that the Orders dated 02.02.2018 and 09.11.2017 have not been passed under section 27. They have been passed under section 25. Since the liberty to file fresh execution provided by the Order dated 03.04.2017 was itself erroneous, the proceedings in the fresh subsequent execution application no. 107 of 2017 were bad ab initio. And the Orders dated 09.11.2017 and 02.02.2018 are bad, since, one, anything bad ab initio cannot be furthered, and, two, they seek to enforce a ‘compromise’ that is significantly and materially at variance with the final Order. 18. Learned counsel for the complainant also argued that the complainant will be left without remedy in case the Order dated 03.04.2017 and the Orders dated 09.11.2017 and 02.02.2018 are in any manner interfered with by this Commission. In this respect, it has to be seen that section 25 and section 27 in the Act 1986 provide remedy to a decree holder. This however does not imply that the decree holder can expect or require the executing court to execute a ‘compromise’ that is significantly and materially at variance with the final Order. This also does not empower an executing court to provide liberty to file execution in case the terms of a ‘compromise’, significantly and materially at variance with the final Order, are not complied with or to undertake execution of such ‘compromise’. 19. In this case the final Order was to execute the sale-deed and deliver possession of the subject plot. The executing court was required to ensure compliance thereof. Nothing more, nothing less. 20. With the above discussion, the Order dated 03.04.2017 in execution application no. 60 of 2017 is set aside. It is also held that the proceedings in the subsequent execution application no. 107 of 2017 are bad ab initio. The Orders dated 09.11.2017 and 02.02.2018 passed therein do not survive. 21. We are explicitly including the remedy now available to the complainant – decree holder while summing up our directions: (i) The Order dated 03.04.2017 of the State Commission in execution application no. 60 of 2016 is set aside with liberty to the complainant to file fresh execution to get the final Order dated 18.04.2016 executed as per the law. (ii) The execution proceedings in execution application no. 107 of 2017 being bad ab initio are set aside. The Orders dated 02.02.2018 and 09.11.2017 of the State Commission in execution application no. 107 of 2017 do not survive. | 
