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

          Heard both the parties. 

This is a common judgement being delivered in Appeal No.1190/2009 and Suo-Motu Revision Petition No.35/2010.

This appeal is directed against the order passed by District Consumer Forum, Mumbai Suburban on 22/09/2009 below Misc. Appl. No.RA/24/2007 arising out of original consumer complaint No.206/2006 decided on 21/12/2006.  By this order, application filed by the appellant seeking time for compliance of an offer which was given by the appellant to the complainant was rejected and thereafter, District Consumer Forum directed to issue non-bailable warrant of arrest returnable on 26/10/2009 as against the appellant.  This order of issuance of a warrant is under challenge.

During pendency of this appeal, prima-facie, the State Commission has noticed that the proceedings which are being carried out by the District Consumer Forum, Mumbai Suburban are not in accordance with the provisions of Section 25 & 27 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for brevity) and therefore, by a detailed order dated 08/03/2010 after hearing the parties, the State Commission gave directions to the Registrar to register a Suo-Motu Revision Petition in view of provisions of Section 17 (1)(b) of the Act and accordingly, Suo- Motu Revision Petition was registered.  After registration of the Suo-Motu Revision Petition, both the parties requested to this Commission to place on record the issues and points of irregularities because of which cognizance has been taken, so as to facilitate both the sides’ Counsels to make appropriate submissions.  Therefore, by an order dated 11/03/2010 after hearing Counsels on both the sides and recording the facts on which prima-facie, Suo-Motu Revision Petition was registered, following points were raised for consideration :-

(1)     What is the scope of execution under Section 25 of the Act?

(2)     In an order wherein direction for delivery of possession is given whether the District Consumer Forum exceeded its jurisdiction in entertaining the application under Section 25 of the Act for execution of such order?

(3)     Whether District Consumer Forum has committed any error or illegality in attaching the property by purportedly invoking its jurisdiction under Section 25 of the Act?

(4)     Whether in a proceeding under Section 25 of the Act, a Receiver can be appointed?

(5)     Whether procedure prescribed under Section 13 & 14 of the Act can be invoked while dealing with the application under Section 25 of the Act?  If yes, what is extent of it?

(6)     Whether proceeding under Section 25 of the Act, can be entertained by the District Consumer Forum in a composite manner or simultaneously and/or it has been entertained distinctly and from that angle scrutinize the act of the District Consumer Forum in the present proceeding or to find out whether it is a case of illegal exercise of any jurisdiction or there a failure to exercise the jurisdiction?

(7)     What is the procedure required to be followed to deal with the application under Section 27 and what orders can be executed under Section 27 of the Act?

(8)     Whether in a proceeding under Section 25 or Section 27 of the Act, intervention application is possible, maintainable and requires to be adjudicated?

In addition to these points which are raised in the Suo-Motu Revision Petition, in appeal, there is objection raised by the respondent that the appeal which is purportedly to be filed under Section 27-A of the Act by the appellant is not maintainable and therefore, maintainability of the appeal is also one of the question to be considered because after presentation of the appeal, the State Commission has issued an order on 29/09/2009 by which the notice before admission is issued and the execution of the order dated 22/09/2009 was stayed till returnable date i.e. upto 25/02/2010.  So, in these circumstances, namely at the stage of admission of the appeal and since cognizance has been taken during pendency of the appeal under Section 17(1)(b) of the Act, Suo-Motu Revision Petition bearing No.35/2010 is being disposed of by this composite order.

The factual matrix under which the State Commission is considering this matter is as follows :-

Respondent No.1 in Appeal No.1190/2009 Mr.Rajesh Sukhthankar is an original complainant, while the appellant Mr.Amir Ali Tharani, Managing Director of Oceanic Builders Pvt. Ltd. is an original O.P.  In a Suo-Motu Revision Petition, appellant is shown as respondent No.1 while complainant is respondent No.2.

          The complaint No.206/2006 was filed by the org. complainant (for sake of convenience, respondent in the above referred appeal and respondent No.2 in the Suo-Motu Revision Petition is referred to as “complainant” and appellant in the appeal and respondent No.1 in the Suo-Motu Revision Petition is being referred to as ‘opponent”).

Complainant has filed complaint No.206/2006 before the District Consumer Forum, Mumbai Suburban against the opponent.  The complainant had booked a flat No.B-101 with the opponent by an agreement dated 20/03/2005 at price of Rs.12 Lakhs.  Built up area of the said premises as stated in the agreement is 670 sq.ft. i.e. 62.2567 sq.mtrs.  At the time of agreement, Rs.1 Lakh were paid by the complainant and the receipt to that effect was acknowledged by the opponent before the Sub-Registrar, Borivali, where the document is registered.  The complainant has thereafter paid full amount of two cheques against the receipt No.52 dated 28/03/2005 and receipt No.129 dated 07/04/2005.  It is to be noted that for making these payments, the complainant has raised a loan of ICICI Bank and since then complainant is making payment of EMIs.  Since the complainant has not received possession of the said flat, complainant has filed said above referred complaint on 28/04/2006.  The complaint was decided on 21/12/2006.  By the said order, complaint was allowed and the opponent was directed to deliver possession of a flat No.B-101, Sharda Gram, Mathuradas Road, Kandivali (W), Mumbai.  Opponent was further directed to pay `142.25 per month (amount of rental premises) to the complainant with effect from 07/04/2005 till the date of possession of said flat.  Opponent is also directed to pay interest @ 9% p.a. on `12 Lakhs with effect from 07/04/2005 till the date of possession of the said flat to the complainant.  Opponent is directed to pay interest @ 9% p.a. on `90,620/- with effect from 07/04/2005 till the date of possession of the flat to the complainant being the amount incurred on stamp duty and registration of the said flat by the complainant.  Opponent was directed to pay `15,000/- to the complainant as compensation towards mental harassment and inconvenience. Opponent was also directed to pay an amount of `3,000/- towards cost of the litigation.  Opponent was directed to comply the order within 15 days from the date of receipt of the order, failing which the complainant will be at liberty to recover the amount and compensation through the Forum.

This order passed by the District Consumer Forum initially was not challenged by the opponent by filing an appeal under Section 15 of the Act before the State Commission and therefore, in view of provisions of Section 24, the order passed by the District Consumer Forum has attained finality as against the opponent.

Thereafter, opponent failed to obey the said order and therefore, the complainant filed application for execution of said order under Section 25 of the Act and it was registered as RA/24/2007.  By this application, complainant prayed that said flat may be attached by the Hon’ble District Consumer Forum.  The complainant also prayed that opponent be directed to disclose all his personal properties and properties of Private Ltd. Company of which he is Managing Director and in execution of said order of District Consumer Forum dated 21/12/2006, said properties of the opponent be attached.  Along with said application, there is annexure giving important details of the case.  In Para 6(viii) of said annexure, it is stated that, “the applicant humbly request the Hon’ble District Consumer Forum to attach the flat as possession is not given to the complainant in spite of order from the Hon’ble District Consumer Forum :– (A) flat No.B-101 Sharda Gram, Mathuradas Road, Kandivali (W), Mumbai-400 067.

(7) Amount with interest due upon the decree approximately `2.25 Lakhs till date, 9% p.a. interest awarded on `12 Lakhs + `90,620/- (12,90,620/- x 9% interest) x 23 months = `2,22,617/- and Rent – 142.25 x 23 months = `3,772/-.  Total `2,25,889/- and  therefore, rounded off of `2.25 Lakhs).

(8) Amount of costs, if any, awarded : `18,000/-(`15,000/- as compensation and `3,000/- as legal cost)  and (9) Against whom to be executed – Shri Amir Ali Tharani, Managing Director of Oceanic Builders Pvt. Ltd.”.

Thus, the application under Section 25 was filed on 26/03/2007.  There is order dated 28/03/2007 by which show cause notice was issued to the opponent.  It further appears that opponent’s Advocate appeared on 18/04/2007 and on 18/04/2007 complainant gave an application making grievance that opponent is trying to sell the said flat to others and therefore, flat may be attached.  It appears that the President of the District Consumer Forum, sitting single passed an order attaching the said flat.  Copy of said application is also given to the other side.  Thereafter, on 12/06/2007 it is prayed that in order to get possession of the said flat, Court Receiver be appointed and accordingly, on 12/06/2007 District Consumer Forum passed an order to deliver possession of the disputed flat through the District Consumer Forum and the Registrar was directed to deliver possession of the said flat.  Said order is dated 12/06/2007.  It further appears that in view of inability of the Registrar to hand over possession, M/s.Khade-Bapat Associates were appointed to take possession of the said flat and to hand over it to the complainant.  Said order is dated 02/07/2007.  However, pursuant to the said order of the District Consumer Forum, on 03/07/2007 when M/s.Khade-Bapat Associates/Court Receiver had been to the said premises at 3.00 p.m. the Receiver found that one Mr.Brij Bangal is in possession of the said flat and said occupant claimed that he has been in possession of the said flat for more than 12 years and said flat stands in the name of his deceased mother-Maya Bangal and he produced certain documents showing that he is owner of the flat.  Therefore, the Court Receiver/M/s.Khade-Bapat Associates could not take possession and hand over possession of the flat to the complainant.

It appears that thereafter Mr.Brij Bangal, third party filed an application dated 25/07/2007 making a prayer that he may be allowed to have an opportunity of making correct representation and show the Hon’ble District Consumer Forum that complainant is not in any way concerned with his attached premises B-101, Sharda Gram and that the Intervener be made party to the execution application.  On presentation of this application, a notice was issued to the complainant and District Consumer Forum directed to maintain statusquo.  Reply to this intervention application was filed. 

          While said intervention application was filed and pending, on 13/09/2007 complainant presented the application invoking Section 27 of the Act as against the opponent and prayed that opponent be convicted for offence punishable under Section 27 of the Act and further consequential order be passed in favour of the complainant.  Copy of this application is given to the other side on the same day and also to the third party Mr.Brij Bangal.  While this proceeding was pending, it appears that District Consumer Forum invoked power under Section 70 of Code of Criminal Procedure read with Section 27 of the Act and passed an order against the opponent issuing bailable warrant since opponent has been charged with an offence of non-compliance of order dated 21/12/2006 passed by the Forum and is found to be absent.  This order was issued to secure his presence.  Thus, bailable warrant was first time issued as against the opponent on 20/09/2007.  This order of the District Consumer Forum was challenged by the opponent by filing Revision Petition No.126/2007 on 10/10/2007.  Said Revision Petition was disposed of by the State Commission by its order dated 19/10/2007.  Said Revision Petition was disposed of with a direction to the District Consumer Forum to dispose of the application of the intervener immediately after hearing of the concerned parties.  Thereafter, District Consumer Forum heard the intervener’s application and passed an order on 17/11/2007.  District Consumer Forum rejected the application for intervention having found that there is no merit in the application and intervener was directed to surrender the flat No.B-101 to the complainant within the period of 15 days.  Said order of the District Consumer Forum was challenged by the intervener/Mr.Brij Bangal by filing an appeal No.1551/2007 on 05/12/2007.  Said appeal was disposed of by the State Commission by order dated 01/09/2008 and the State Commission dismissed the said appeal summarily with a cost of `5,000/- to be paid to the complainant.  As against this order of the State Commission, it is reported by both the Counsels that intervener has not filed any Revision Petition before the National Commission and therefore, the order of the District Consumer Forum and the State Commission rejecting the intervention application of Mr.Brij Bangal has equally attained the finality under Section 24 of the Act.  Thereafter, it appears that opponent was found to be absent and under the above referred circumstances, District Consumer Forum issued a bailable warrant of `50,000/- with a direction dated 01/10/2008 to the opponent that he shall remain present before the Forum below on 15/10/2008.  Said warrant was not executed and therefore, explanation was called from the Police Department.  Another warrant dated 16/10/2008 was issued.  Thereafter, on 24/10/2008 opponent appeared and gave an application for cancellation of warrant and the warrant was cancelled on furnishing PR Bond of Rs.10,000/-.  Accordingly, opponent filed a PR Bond to appear on 15/11/2008.  Thereafter, it appears that when it was found that on 15/11/2008 opponent was absent, the complainant gave an application praying the District Consumer Forum to issue a non-bailable warrant and forfeit the amount of PR Bond of `10,000/-.  Accordingly, order to issue non-bailable warrant against the opponent was passed and also the PR Bond which was executed for `10,000/- was forfeited.  In view of this order dated 15/11/2008 a non-bailable warrant was issued.  However, thereafter, before the said warrant could be executed, opponent gave an application on 20/11/2008 praying cancellation of non-bailable warrant of arrest and to recall the order of forfeiture of PR Bond of `10,000/-.  He also requested for permission to tender the post-dated cheques of `4,40,000/- to the complainant.  On the said application, opponent ultimately submitted that possession of the said flat was with Mr.Brij Bangale and therefore, complainant may proceed for an execution in accordance with the law.  On the said date, it appears that no order was passed on this application.  But, it appears that on the adjourned date i.e. 26/11/2008 opponent gave another application submitting and praying the District Consumer Forum that since the Court Receiver has been appointed in respect of the property, the complainant shall follow the procedure for getting possession of the property and the provisions of Section 27 are not attracted and claimed cost of the proceeding under Section 27.  It appears that this application and earlier application for cancellation of non-bailable warrant were heard together and were rejected by order dated 26/11/2008.  Said order dated 26/11/2008 was challenged by the opponent by filing appeal No.1502/2008 along with Misc. Appl. No.2117/2008 on 02/12/2008.  In the said appeal, initially the stay was granted and the opponent was directed to deposit an amount of `9 Lakhs with the District Consumer Forum.  It appears that in view of this order, warrant could not be executed.  This appeal of the opponent was disposed of by the State Commission on 23/04/2009 with cost of `2,000/- with a direction that the appellant-opponent to appear before the executing District Consumer Forum and the executing District Consumer Forum shall pass appropriate order under Section 27 of the Act after observing the principles of natural justice.  It is interesting to note that when the appeal No.1502/2008 came up for hearing for admission before the State Commission on 23/04/2009, on the same date, First Appeal No.709/2009 along with Misc. Appl. No.750/2009 was placed for admission.  It is the appeal filed by the opponent/appellant as against the main order passed in consumer complaint No.206/2006 which was decided by the District Consumer Forum on 21/12/2006 i.e. after said order has attained the finality as stated earlier and the execution proceeding has proceeded in the manner as stated above.  In the said appeal, there was a delay condonation application to condone the delay of 29 months.  Said appeal was heard finally at the stage of admission with the consent of parties by the State Commission and by order dated 23/04/2009 Misc. Appl. No.750/2009 for condonation of delay was rejected and consequently, appeal was dismissed.  Thereafter, the matter appeared before the District Consumer Forum on 12/05/2009 and therefore, having found that in the execution proceeding, the opponent is absent, the complainant gave an application on 12/05/2009 praying for non-bailable warrant.  However, District Consumer Forum issued a bailable warrant of `25,000/- returnable on 02/06/2009.  On 02/06/2009 it appears that opponent was present, bailable warrant which was issued was cancelled by the District Consumer Forum in view of application given by the opponent on 24/06/2009.  It appears that the matter was adjourned on several dates, but on or about 01/07/2009 opponent filed a say in the matter opposing the proceeding under Section 27 of the Act.  Said application was objected by the complainant’s Advocate and say to that effect was filed on 03/07/2009.  On 03/07/2009 opponent filed an undertaking to try his level best to vacate the premises and to co-operate to execute the order of the District Consumer Forum and will report to the District Consumer Forum.  Though the undertaking was recorded by the District Consumer Forum, thereafter on 22/07/2009 opponent filed another assurance before the District Consumer Forum that possession of new flat in lieu of present flat No.B-101 of Sharda Gram would be handed over to the complainant and he further stated that in order to deal with and confirm new flat, time upto 07/08/2009 be granted.  On the said offer, the complainant has stated “if I am offered a new flat of same size and same area, I shall accept the same”.  That was recorded by the President of the District Consumer Forum on 22/07/2009.  It appears that there is common application dated 07/08/2009 filed on record wherein it is stated that “Mr.Thorani (Opponent) showing flat No.B-203, 2BHK, 850 sq.ft. in Rajeshri Kunj, Iraniwadi, Road No.3, Kandivali (W), Mumbai-400 067, were ready to accept the same as above offer, if it is provided free of cost.  Kindly grant this application and give me possession as early as possible.  I agreed the aforesaid flat without demanding any amount and it is signed by the opponent”.  Thus, this document was signed by both the parties and it was presented to the President of District Consumer Forum on 07/08/2009.  There is another document on record which is read and recorded by the President of the District Consumer Forum on 13/08/2009 wherein the complainant has reported “I am ready to accept 2BHK 1060 sq.ft. flat in A-Wing, 2^nd & 4^th floor in Rajeshree Kunj”.  There appears to be an endorsement by the opponent on the said application to the following effect “Ready and accept the above any one flat without claiming any cost and also give peaceful possession in one month and 15 days” and thereafter, opponent has signed it.  Thereafter, it appears that case was adjourned twice due to the difficulties of the opponent and on all these dates opponent was absent.  On 22/09/2009 also opponent gave an application for an adjournment and seeking time for compliance of the offers which are recorded earlier.  Since, it was strongly objected and the District Consumer Forum found that these are delaying tactics on the part of opponent, the application seeking time was rejected and having found that opponent is absent, passed an order of issuance of non-bailable warrant returnable on 26/10/2009.  This last order is a subject matter of present appeal No.1190/2009 and since stay was granted to the impugned order in this appeal by order dated 29/09/2009, non-bailable warrant which was directed to be issued on 22/09/2009 and which was actually issued on 24/09/2009 cannot be executed.

Thus, with this chequered history, we are dealing with this matter.

It further appears that in the present appeal, original complainant filed Misc. Appl. No.1613/2009 praying that stay granted in the appeal be vacated so that proceeding under Section 27 can continue.  On that this State Commission has passed an order on 21/01/2010 that “we do not want to entertain this application at this stage.  We direct both the parties that they should see that the flat in possession of Mr.Brij Bangal shall get vacated with the help of police.  This is the only solution we find at this juncture to be immediately acted upon” and both the parties were directed to appear before the State Commission on the date fixed i.e. 25/01/2010.  Thereafter, the State Commission has taken cognizance of the matter under Section 17(1)(b) and have heard both the matters together.  Even record from the Forum below was called for the purpose of perusal.

Therefore, we have to consider the points which are stated in the earlier part of this order in the facts and circumstances of the case.

Interpretation, scope and the procedure to be followed by the Consumer Fora while executing order under Section 25 and 27 of the Act, is the main question which requires to be dealt with in the present case.  It further requires to be considered in view of facts that both these Sections have undergone an amendment and yet many of the District Consumer Forums in the State are following the old procedure in respect of Section 25 & 27 of the Act. 

In this respect, first, we would like to deal with provisions of Section 25.  Present Section 25 has been substituted by the Act 62 of 2002 with effect from 15/03/2003.  Therefore, present Section 25 is substituted section.  Prior to 15/03/2003 Section 25 was as under :-

“25.  Enforcement of orders by the District Consumer Forum, the State Commission or the National Commission – Every order made by the District Consumer Forum, the State Commission or the National Commission may be enforced by the District Consumer Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were decree or an order made by a Court in a suit pending therein and it shall be lawful for the District Consumer Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the Court within the local limits of whose jurisdiction, - (a) in the case of an order against a company, the registered office of the company is situated, or (b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the Court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution.”

This section was substituted with effect from 15/03/2003 and the substituted present section is as follows :-

“25. Enforcement of orders of the District Consumer Forum, the State Commission or the National Commission – (1) Where an interim order made under this Act, is not complied with, the District Consumer 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 Consumer 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 Consumer 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 Consumer Forum, the State Commission or the National Commission, as the case may be, and such District Consumer 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.

          On bare comparison of these two Sections, it will be evident that the present section is radically different than the earlier section 25.  Earlier section 25 was dealing with enforcement of the execution of the order passed by the Consumer Fora.  The orders passed by the Consumer Fora were treated to be decrees or orders made by a Court in a suit pending therein, enforceable in the same manner as if it were decrees or orders made by a Court in suit pending therein.  Therefore, the orders of the Consumer Fora were treated to be decrees of the Civil Court executable and enforceable in the same manner by the Consumer Fora and/or by Civil Court.  In short, Consumer Fora were empowered with the power of execution like that of the Civil Court treating the order of the Consumer Fora as a decree or order passed in a pending suit.  In short, it was given an effect of a preliminary decree as we consider it under the Code of Civil Procedure and therefore, the procedure as contemplated in respect of execution of preliminary decree under Order XXI of Code of Civil Procedure was applicable and the Consumer Fora were empowered to execute the said order by following the said procedure.  Said section further provided that it shall be lawful for the Consumer Fora to send such order to the Court within the local limits of whose jurisdiction – if it is an order against the Company, the registered office of said Company and if it is an order against the person, place where the said person voluntarily resides or carries on business or personally works for gain, is situated.  However, before sending the order to the Civil Court for execution, Consumer Fora has to find out and has come to the conclusion that it is not possible or their inability on the part of the Consumer Fora to execute the order and when in this manner the order has been sent to the Civil Court, Court shall execute the said order as if it is a decree or order sent to it for execution.  Thereby it is to be noted that the orders passed by the Consumer Fora were treated as decree under the Code of Civil Procedure and the first option was with the Consumer Fora to execute the said decree in the same manner as if it is a decree or an order passed in a pending suit.  If the Consumer Fora expressed its inability to execute the said order, it was lawful for the Consumer Fora to send the said decree to the Civil Court within whose jurisdiction the opponents are situated, keeping a distinction in mind in respect of Company and the individual as stated in the said section and on transfer of the said decree to the Civil Court, the Court shall execute the said decree.  This deeming fiction of treating orders of Consumer Fora as decrees of Civil Court either executable by Consumer Fora or Civil Court, which was introduced in earlier Section 25, is not available after introduction of new section.  Now the orders passed by the Consumer Fora cannot be executed through the Consumer Fora by following a procedure as provided under Order XXI of Code of Civil Procedure because it has no more a force of decree and it cannot be executed as a decree of Consumer Fora by Consumer Fora.  Consumer Fora now cannot send the orders passed by the Consumer Fora to the Civil Courts for execution as was permissible under the old section 25.  Therefore, the earlier practice of effecting an attachment of movable or immovable property during pendency of execution, etc., cannot be exercised by the Consumer Fora now.  The Consumer Fora being a statutory body do not have inherent powers to exercise powers under the Code of Civil Procedure.  Not only that but the Regulations which were framed by the National Commission also provides that unless an Act and the Rules and the Regulations provides for an application of the Code of Civil Procedure, provisions of Code of Civil Procedure shall be avoided.  Therefore, net result after the amendment of section 25 is that the procedure as contemplated under the Code of Civil Procedure, Order XXI for execution of the orders of Consumer Fora as decrees of the Civil Court cannot be followed by the Consumer Fora and most of the District Consumer Forums have lost sight of this fact still have tried to follow the old procedure.

          On going through the new section 25, it will be seen that sub-section (1) of section 25 deals with enforcement of the interim orders passed by the Consumer Fora under this Act and for the said purpose, Consumer Fora is empowered to attach the property of a person who is not complying with the interim orders of the Consumer Fora.  Therefore, sub-section (1) of section 25 is only restricted to the enforcement of the interim order and that too by attachment of the property and therefore, except in the manner and the power given by sub-section (1), interim orders of the Consumer Fora cannot be enforced in any other manner namely for non-compliance of the interim orders, the Consumer Fora cannot keep a person in civil prison.  It is further to be noted that sub-section (2) of section 25 is dealing with the attachment carried out under sub-section (1) of section 25 and therefore, sub-section (2) also deals with execution or enforcement of the interim orders only.  According to the said section, in view of sub-section (2) of section 25, the attachment of the property effected by the Consumer Fora under sub-section (1) of section 25 shall remain in force for a period of three months and if at the end of three months, non-compliance of interim order continues, the Consumer Fora may sell the said property and after realization of sale proceeds of the said property, the Consumer Fora may award such damages as it thinks fit to the complainant and shall pay the balance amount, if any, to the party entitled thereto.  In short, sub-section (2) of section 25 lays down that the attachment shall be continued for three months firstly, if within three months, the person who is supposed to obey the interim orders, failed to obey and non-compliance of the interim orders continues at the end of three months, it will be open for the Consumer Fora to sell said attached property and to pay the damages to the complainant and if after payment of damages to the complainant, if any sale proceeds are in balance, it shall be paid to the person who is entitled thereto, namely, the owner of the property or any other person who is entitled to the said balance sale proceeds.  Reading sub-section (1)&(2) of section 25, it is a complete code for execution of the interim orders.  So far as, sale of the property is concerned, neither the Act nor the Rules framed under the Act provided for in what manner the sale should be carried out by the Consumer Fora.  However, Consumer Fora is vested with powers to sell such property of a person who is suffering from non-compliance of interim orders.  But, it is well settled principles of law that whenever the authority is empowered to do a particular act and the procedure has not been provided for, it is open for the said authority to follow an appropriate procedure and/or to evolve its own procedure which is just and proper in the facts and circumstances of the case till appropriate rules are framed by the rule making authority.  Only embargo is that such procedure shall not be an arbitrary one, fanciful, unreasonable and devoid of principles of natural justice.  Therefore, any procedure which is followed or evolved by the Consumer Fora keeping in its mind the above referred principles, said procedure for sale of the property will be appropriate till the appropriate procedure is provided in the Act or the Rules or by the Regulations.  In short, sub-section (1)&(2) of section 25 (new) are only applicable to the enforcement and execution of interim orders and said provisions cannot be applied for execution of the final orders which are passed in the complaints.

          Now coming to sub-section (3) of section 25 (new), we find that this sub-section is applicable where any amount is due from any person under an order made by the Consumer Fora.  This section also provides that the person entitled the amount may make an application to the Consumer Fora and the Consumer Fora may issue a recovery certificate for the said amount to the Collector of the District and the Collector shall proceed to recover said amount in the same manner as arrears of land revenue.  On plain reading of sub-section (3) of section 25 it follows that whenever the amount is due from any person under the orders of the Consumer Fora, for recovery of said amount, the person entitled may make an application and the Consumer Fora may issue a certificate to the Collector to recover the said amount as arrears of land revenue.  Therefore, this sub-section will be applicable to an interim order passed by the Consumer Fora directing a payment of amount during pendency of the complaint or any other proceeding before the Consumer Fora.  It is to be noted that this sub-section will be equally applicable where the orders for recovery of the amount have been passed by the Consumer Fora as against either party and/or as against any person while disposing of the complaint finally.  In short, sub-section (3) will be applicable whenever the Consumer Fora passed an order directing payment of an amount against any person, and the said amount has become due either in final adjudication of the complaint and/or as a result of interim orders passed by the Consumer Fora.  Therefore, sub-section (3) will be applicable in respect of recovery of amounts either at the interim stage of complaint and/or after the final disposal of the complaint.  The procedure which is contemplated is that the person entitled to the amount has to make an application to the Consumer Fora and the Consumer Fora may issue a certificate for the said amount to the Collector of district, who shall proceed to recover the said amount in the same manner as arrears of land revenue.  Therefore, when such an application is made by the person entitled to the said amount, the Consumer Fora has to find out initially that whether there is an order of Consumer Fora to recover the amount and secondly, whether the person against whom said order has been passed, namely, opponent in the said application has paid the said amount or not.  In order to ascertain whether there is a payment of the said amount or not, Consumer Fora may issue a notice to the opponent in the said application and on his appearance shall ascertain from the opponent as to whether said amount is paid or not.  If the Consumer Fora finds on appearance of the opponent that the amount has been paid and there is sufficient material to hold that amount has been paid, then the Consumer Fora may dismiss the said application.  However, on appearance of the opponent, if it is found that the opponent has not paid the amount due under the orders of the Consumer Fora, the Consumer Fora shall issue a certificate for recovery of the said amount to the Collector of the district.  Thereafter, the Collector is supposed to proceed to recover the said amount as arrears of land revenue.  At this stage, it is required to be mentioned that in many District Consumer Forums in the State, practice is being followed by the District Consumer Forums directing the person making an application to produce information about the property of the opponent and thereafter, proceed to issue a certificate of recovery of the amount to the Collector of the district.  Since such procedure is being followed, many applications under sub-section (3) of section 25 are unnecessarily pending in the District Consumer Forums.  In fact, District Consumer Forum has only to find out whether the amount is due as per the order of the District Consumer Forum and whether the opponent has paid the said amount or not.  After having found that the amount has not been paid by the opponent, District Consumer Forum is under obligation to issue a certificate for recovery of the said amount to the Collector of the District.  It is equally found that in some of the cases wherein certificates have been issued by the District Consumer Forums with particulars of the property and thereafter, the Collector or the person nominated by the Collector has found that the said property is not available, the Collectors have returned said certificates to the Consumer Fora.  It is equally noticed that in some cases, District Consumer Forums had issued certificates without particulars of the property of the opponent and such certificates have been returned by the Collectors to the Consumer Fora.  Both these practices and the decision taken by the Collector and nominees of the Collector are not proper.  Once the certificate is issued under sub-section (3) of section 25 (new), the Collector is supposed to proceed to recover the amount in the same manner as arrears of land revenue.  Therefore, the Collector is under obligation to find out the movable and immovable property of the opponent as Collector and Revenue staff of the Collector is doing while recovering amounts of arrears of land revenue.  It is to be noted that while recovering the arrears of land revenue, it is the Collector and the Revenue staff who collects the information about the movable and immovable property of the person in default of payment of land revenue, attach the said property and put the said property to sell in accordance with the provisions of the Land Revenue Code and the Rules applicable to recovery of land revenue.  Whenever, the Collector finds that the person from whom the land revenue is to be recovered is not possessed of any movable or immovable property, the Collector may proceed to keep the said person in a civil prison so as to recover the said amount.  This is being explained for the purpose that while recovering the arrears of land revenue, it is the Collector and the Revenue staff, who collects every information in respect of person from whom the land revenue is to be recovered and thereafter, they take an appropriate steps as provided under the Land Revenue Code and the Rules to recover the said amount.  Therefore, same procedure is applicable while recovering the amount in respect of which the certificate has been granted by the Consumer Fora.  The Collector and the nominees of the Collector to whom the said certificate is transmitted for recovery as arrears of land revenue has to keep in mind that mandate of the law is that the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.  In the Maharashtra Land Revenue Code, 1966 process of recovery of arrears is given which we reproduce as under:-

          “176.  Process of Recovery of arrears – An arrear of land revenue may be recovered by any one or more of the following processes, that    is to say -

(a)             by serving a written notice of demand on the defaulter under section 178;

(b)             by forfeiture of the occupancy or alienated holding in respect of which the arrear is due under section 179;

(c)              by distraint and sale of the defaulter’s movable property under section 180;

(d)             by attachment and sale of the defaulter’s immovable property under section 181;

(e)              by attachment of the defaulter’s immovable property under section 182;

(f)               by arrest and imprisonment of the defaulter under sections 183 and 184;

(g)             in the case of alienated holding consisting of entire villages, or shares or villages, by attachment of the said villages or shares of villages under sections 185 to 190 (both inclusive)”

          On going through this provision, it seems -

          It is to be noted that, the properties of opponent situated within territorial limit of his District are to be attached and sold for recovery of amount of certificate.  In fact all the information of immovable property of such person is available with the Collector, namely, extracts of agricultural and non-agricultural lands are with the Revenue offices.  Extracts of City Survey are also available with the Revenue offices.  Therefore, it is quite possible for the Collector to collect information of immovable property.  Assuming for the sake of arguments that the certificate holder is under obligation to give such information, then instead of returning and/or refusing to execute said certificate, the Collector can direct the certificate holder to give particulars of movable and immovable property.  Apart from that sale of movable and immovable property is not only way of enforcing certificate.  The Collector can also keep the person in prison as provided in Section 183 of the Maharashtra Land Revenue Code, 1966.  In fact the Consumer Protection Act, 1986 is a benevolent social legislation to provide quick relief to the consumers.  Therefore, the Collector and the revenue officers shall have a positive approach to execute the certificate rather than to return it back on technical grounds as discussed above.  Therefore, it is improper and illegal on the part of the Collector and their Revenue staff to refuse to recover the amount of the certificate issued by the Consumer Fora whenever such a certificate is sent by the Consumer Fora without particulars of the property of the opponent or of the person from whom the amount is to be recovered as per the orders of the Consumer Fora.  Therefore, on a proper reading of sub-section (3) of section 25, the Consumer Fora, when it finds that the amount has not been paid to a person entitled to receive the amount by the other side, has to issue a certificate to the Collector and the Collector has to recover the said amount as arrears of land revenue by following the same procedure and the manner as they follow in respect of recovery of the land revenue and non-furnishing the information along with the certificate in respect of property of the opponent, the Collector and the nominees of the Collector cannot refuse to execute said certificate granted by the Consumer Fora.  However, though we have analysed the section, to fix up the statutory liability of recovery on the Collector, the Collector may seek an assistance from a person, who is entitled to receive the said amount on the basis of certificate, about the information in respect of the property of the opponent and the person entitled to receive the amount shall also render such assistance to the Collector and/or his nominees so that early execution of the certificate becomes possible one.  However, only because the person entitled to the amount is not in a position to assist the Collector and/or his nominees by providing particulars of the property of the opponent, that itself cannot be a ground for the Collector and his nominees to refuse to execute the certificate granted by the Consumer Fora.  It is to be noted that sub-section (3) has placed this responsibility on the State Machinery like the Collector because the State and Central Legislature desires that the amounts which are to be recoverable under the Act shall be recovered as early as possible without any delay and therefore, Legislature has put up this obligation on the State Machinery by drafting sub-section (3) in a manner as stated above.  The only restraint which the Collector has to keep in mind while recovering the amount as arrears of land revenue is that, that when the Collector is proceeding to recover the amount by attachment and the sale of movable property, the Collector and/or his nominees shall not attach such a movable property which are not attachable under the law, namely, the clothes required for daily use, utensils for daily use and cooking and food items required for daily consumption. [See proviso to Section 176 of the Maharashtra Land Revenue Code, 1966].  Except this all other movable properties and/or immovable properties can be attached by the Collector and can be sold.  If there is any dispute in respect of any attached property raised by third person, the same can also be adjudicated by the Collector since the procedure provided for recovery of the land revenue provides for such objection being considered after sale of property and before issuance of sale certificate to the purchaser.  [See Section 210 of the Maharashtra Land Revenue Code, 1966]. After the issuance of certificate by the Consumer Fora, the procedure contemplated for recovery of the amount as arrears of land revenue is a Code itself providing for all the contingencies and the circumstances and therefore, it will be inappropriate on the part of the Collector to return back the certificate without executing the same because certificate is not possessed of particulars of movable and immovable property of the opponent.  One more aspect is also required to be dealt with.  It has been found that some of the Collectors are deducting 10% amount from the recovered amount which is to be paid to the person entitled to the said amount by way of administrative charges.  In fact the certificate has been issued by the Consumer Fora because opponent has failed to pay the amount as directed by the Consumer Fora and therefore, as per directions of the Consumer Fora the person entitled to the said amount is entitled to have and receive full amount as directed by the Consumer Fora and from the said amount the administrative charges which the Collector has incurred for recovery of the said amount cannot be recovered.  On the contrary, it is opponent who has constrained to follow the procedure under sub-section (3) of section 25(new) and it is the opponent who has invited said proceeding and therefore, he is under obligation to pay the cost of the litigation and therefore, the Collector is supposed to recover the administrative charges for recovery of the amount of the certificate from the opponent in addition to the amount which is stated in the certificate.  To that effect the State Government has also issued directions vide Government Resolutions (Revenue & Forest Dept.) No.REV 1097/CR No.18/L-5 dated 05/10/1995 and dated 22/06/1999.  These directions are ignored by most of Collectors.  The State Commission has noticed that these directions given by the State have been ignored by the Collector.  The State Commission also records a finding that even in absence of such directions from the State, the law requires that the erring party who has invited legal proceeding shall bear cost of the proceeding and not the party in whose favour the relief has been granted by the Consumer Fora and therefore, the procedure of deduction of 10% of the amount from the amount of recovery certificate as administrative charges is not a just and legal act on the part of the Collector and nominees of the Collector, who recovered the amount of the certificate granted under section 25(3) of the Act.

          It is abundantly clear as stated above, sub-section (3) of section 25(new) is applicable wherein the amount is due from any party under the order of the Consumer Fora.  But, however, if on reading the order of the Consumer Fora, if it is found that there is no order directing for recovery of the amount, then the question arises whether section 25(3) can be invoked for enforcement and/or execution of the order of the Consumer Fora.  This requires to be considered in the facts of the present case because in the present case, initially, an application under section 25 has been filed by the complainant.  However, the order in consumer complaint No.206/2006 shows that there is an order for delivery of possession of a flat No.B-101 Sharda Gram, Mathuradas Road, Kandivali (W), Mumbai.  Apart from that opponent is directed to pay an amount of Rs.142.25 per month by way of rental of the premises to the complainant with effect from 07/04/2005 till the date  of  possession  of  the  flat.  The opponent is directed to  pay  interest @ 9% p.a. on `12 Lakhs with effect from 07/04/2005 till the date of possession of the said flat to the complainant.  The opponent is also directed to pay interest @ 9% p.a. on `90,620/- with effect from 07/04/2005 till the date of possession of the flat being the amount incurred on stamp duty and registration of the said flat.  `15,000/- were directed to be paid the complainant towards cost of mental harassment and inconvenience and `3,000/- were directed to be paid for cost of litigation.  For execution of this order of the District Consumer Forum, an application under section 25 has been filed by the complainant.  On perusal of this order, what we find that the first direction is in respect of delivery of possession of the flat and therefore, it is not a direction in respect of the amount to be paid by the opponent to the complainant.  So far as rest of the directions are concerned, the amount of rent of premises, interest on initial payment of consideration of `12 Lakhs and the interest on amount of `90,620/- incurred for stamp duty and registration is to be calculated from 07/04/2005 till the date of possession.  However, since the possession has not been delivered, the final calculation of the amount due cannot be done and therefore, the final calculated amount due will be available on a date of delivery of possession of the flat and therefore, even though there is an order of the District Consumer Forum in respect of these amounts, application in respect of getting certificate for recovery of these amounts as arrears of land revenue can be filed by the complainant only after the possession has been delivered by the opponent to the complainant and therefore, it cannot be said that those amounts were due on the date of application under section 25.  Only the amount in respect of which the application under section 25 could have been filed is an amount of `15,000/- to be recoverable towards cost of mental harassment and inconvenience and `3,000/- to be recoverable as cost of the litigation.  Therefore, resultantly, what we find that the application under section 25 in respect of direction for delivery of possession of the flat in question, was/is not tenable in law.  The application in respect of recovery of the rental and interest on principal amount of `12 Lakhs and the interest on the amount of stamp duty and registration amount will only become payable after the delivery of possession and therefore, the application in respect of recovery of these amounts is pre-mature application.  Therefore, application under section 25(3) filed by the complainant survives and it is tenable only in respect of the amount of `15,000/- and `3,000/-, namely, the amount for mental harassment and cost of the litigation at this stage. 

The Learned Counsel for the complainant has filed a brief of arguments and while answering the point, namely, any order wherein direction of delivery of possession is given, whether the District Consumer Forum exceeded its jurisdiction in entertaining the application under Section 25 of the Act for execution of said order, has submitted on behalf of the complainant that sub-section (3) of section 25 makes it clear that the application under the said provisions is maintainable if some amount is due from any person under the orders.  Consequently, the order, wherein there is direction for delivery of possession is beyond the scope of sub-section (3) of section 25 of the Act.  Therefore, strictly speaking, the application under sub-section (3) of section 25 in respect of direction of delivery of possession is not maintainable in the eyes of law.  Consequently the Learned District Consumer Forum should not have entertained such application under section 25 of the Act once there was an order for delivery of possession.  So far as this point is concerned, the opponent has not categorically advanced the argument in brief of arguments.  However, opponent has stated that sub-section (3) of section 25 deals with execution of final orders where the scope is limited to recovery of any amount that has been awarded whether by way of refund or compensation or cost as the section reads “where any amount is due”.  The procedure for recovery of amount due is confined by the Legislation by way of recovery certificate to be forwarded to the Collector Office.  The recovery can be done in the same manner as arrears of land revenue.  Therefore, submissions of both the Counsels are also in conformity and in agreement with the above referred reasoning given by us.  Therefore, the District Consumer Forum has committed an error in entertaining an application under section 25 for the purpose of delivery of possession of the flat.  Therefore, on a proper analysis, what we find that the District Consumer Forum could have entertained the application under section 25 only in respect of the amount of `18,000/- (`15,000/- as compensation for mental agony plus `3,000/- as legal costs).  If the complainant desire to file an application in respect of other amounts, said application could have been filed by the complainant after the complainant has obtained the possession of the flat in question because those amounts are required to be calculated till the date of possession as per the directions of the District Consumer Forum.  Therefore, what we find that the application under section 25 filed by the complainant for recovery of the amount except the amount of `18,000/- stated as above is pre-mature and the complainant is entitled to file a separate application for getting separate certificate after the complainant gets possession of the flat in question and therefore, after analysing the application under section 25 as stated above, District Consumer Forum ought to have disposed of the said application.

          We make it clear that so far as execution is concerned, the order passed by the Consumer Fora may become executable stage by stage as per the directions given in the final order.  This we have realized and have found after perusal of the order under execution in the present case also.  Therefore, what we find that, whenever the order passed by the Consumer Fora become executable part by part and if the said executable part pertains to recoverable amount, the application for recovery of amount can be filed by the complainant to get a certificate.  Therefore, it is equally possible that one complainant may file multiple applications for recovery of the amount whenever such amount become due under the order of the Consumer Fora and at each such stage the Consumer Fora may issue a separate certificate in favour of the complainant and/or a person entitled to receive the amount.  Since, it is an execution and enforcement of the order passed by the Consumer Fora, there is no limitation for filing an application under section 25(3) and therefore, the complainant may either wait till all the amounts became due and payable and try to get one certificate and/or he may file a separate application for recovery of the amount as and when the amount become due and payable in view of the directions contained in the order of the Consumer Fora.  This is being explained that if the applications are filed by the complainant step by step and the certificates are issued, that will be permissible under the law and it will not be open for the opponent to contend that since at the time filing of first application, all claims were not made and therefore, subsequent applications under section 25(3) are not maintainable.  Ultimately, the Consumer Fora has to see that the orders which are passed by the Consumer Fora are enforced and multiple applications of the execution are not an unknown phenomenon for a civil law of which Consumer Protection Act, 1986 is part.  Therefore, what we find in the present matter that the certificate in respect of recovery of the amount of `18,000/- can be issued in favour of the complainant and the certificate in respect of rest of the amounts which may become due and payable on delivery of possession since the interest is required to be calculated till the date of possession of the flat in question, can be granted by the Consumer Fora on subsequent application by the complainant at the later stage i.e. after delivery of possession and there will not be any legal bar for such a subsequent application under sub-section (3) of section 25(new).

          Thus, we record our finding that sub-section (3) of section 25 (new) is applicable for recovery of the amounts which are directed to be paid under the order of the Consumer Fora, said sub-section will be applicable for recovery of the amounts which are directed to be paid by the order of the Consumer Fora at the interim stage of the complaint and/or it will be equally applicable for recovery of amounts which are directed under the order of Consumer Fora at the time final disposal of the complaint.  We also observe that taking into consideration the facts and circumstances of the case and the order under enforcement and the conditions put up by the Consumer Fora, multiple applications under sub-section (3) of section 25 for getting certificates are permissible provided that in each application the amount to be recovered shall not overlapping the amount in respect of which the certificate has been already issued in the earlier application.  The Collector or nominees of the Collector shall enforce said certificate by following the procedure and the manner in which the arrears of land revenue is to be recovered and the Collector and the nominees of the Collector may take assistance of the complainant.  However, for whatsoever reason, the complainant is unable to extend assistance that will not be a ground to refuse the enforcement of the certificate.  Equally, non-mentioning particulars of the property of the opponent in the certificate shall not be a ground to refuse to enforce said certificate and return it back to the Consumer Fora.

          Though the obligation or the legal duty of the Consumer Fora is over the moment certificate is issued under section 25 (3), Consumer Fora have a supervisory control over the Collector and the nominees of the Collector.  It will not be permissible for the opponent and/or to the Collector to contend that after issuance of certificate, the Consumer Fora has become functious officio.  Ultimately, it is an order of the Consumer Fora which is duly promulgated by the Consumer Fora and transmitted for enforcement in accordance with the law to the Collector.  This order flows from the judicial proceeding as stated in section 13(5) of the Act and therefore, whenever the Collector refuses to enforce said order and/or unduly delays the execution and enforcement of the said order so as to make the said order futile and non est in law, the Consumer Fora will have a supervisory power over the Collector.  No doubt, while execution or enforcement is going on in a manner as provided in the Land Revenue Code and the Rules, the Consumer Fora will not interfere in the said enforcement proceeding, but where Consumer Fora has noticed that the Collector has wrongly closed the execution of enforcement and/or has avoided or delayed the execution of enforcement which amounts to a disobedience of the directions of the Consumer Fora,  the Consumer Fora will have an appropriate supervisory control and the Consumer Fora may proceed as against the Collector by invoking its power under section 195 of Code of Criminal Procedure read with Section 187 & 188 of Indian Penal Code and that much limited supervisory control of the Consumer Fora has been provided by the Statute. 

          In Code of Civil Procedure also Section 54 provides that whenever decree passed by the Civil Court is in respect of partition of agricultural lands assessed to land revenue, said decree shall be sent to the Collector for an execution and thereafter, the Collector shall execute the said decree under the provisions of the Maharashtra Land Revenue Code, 1966, more specifically Section 85 read with rules framed under said Section of the Maharashtra Land Revenue Code.  Therefore, the statutory duty has been cast on a Collector to execute the said preliminary decree of partition of agricultural lands assessed to land revenue.  In that circumstances also, the supervisory control of the Civil Courts has been preserved and the same has been approved by the High Court.  In a reported judgement, AIR 1945 Bombay 338, Ramabai Govind V/s. Anant Daji, it is observed that, it is only if the Collector contravenes the decreetal order or transgresses the law or otherwise acts ultra vires, or refuses to carry out the decree, that his action is liable to be controlled and corrected by the Court, which passed the decree.  Said ratio and observation has been also approved by Bombay High Court in a reported judgement, 1997(3) Mh.L.J. page-419, Anandrao Ganpatrao Belkhode & Ors. V/s. Aizzul Haq Hazi Abdul Bari deceased by L.Rs.  Thus, provision of Section 54 speaks about the decree of partition of agricultural lands assessed to land revenue code to be executed by the Collector.  Similarly, Section 25(3) of the Consumer Protection Act, 1986 states that after issuance of certificates under Section 25(3) by the Consumer Fora for recovery of the amount found due under the orders of the Consumer Fora, the Collector shall proceed to recover the said amount as arrears of land revenue.  This is a statutory duty of the Collector and therefore, we have observed in the earlier part that whenever the Consumer Fora finds that that the certificates which are promulgated by the Consumer Fora with a direction to the Collector to recover the amounts stated in the certificates as an arrears of land revenue, the Collector cannot avoid the execution of the said certificates.  At the cost of repletion, it is stated that whenever it is found that the Collector has unduly delayed the execution of the certificate and/or has denied to execute certificate and/or by his conduct is trying to make the certificate futile and/or acts contrary to directions and/or acts ultra vires and/or if the Collector acts in contravention of the provisions of law, so that the complainant may lose faith in the execution system, the Consumer Fora shall have a limited supervisory control to the extent to see that the Collector obeys the directions given in the certificate and the certificate is enforced by the Collector.

          This, we have clarified because many parties and even the Collectors and their nominees are under impression as if they are not answerable to the Consumer Fora once the certificate is transmitted to the Collector.  Said view of some of the Collectors and the nominees of the Collector is not a correct one.

          This takes us to other aspect of section 25.  In the present case, after presentation of the application under section 25, application was moved to attach property namely flat No.B-101 on 18/04/2007 and thereafter the District Consumer Forum passed an order effecting an attachment of the property.  Then on 12/06/2007 the complainant moved an application for appointment of Receiver and the said application was also allowed and ultimately, directions were given to M/s.Khade-Bapat Associates to take possession of the flat and hand it over to complainant.  The Receiver-M/s.Khade-Bapat Associates when came to the premises on 03/07/2007 at 3.00 p.m. for taking possession of the flat and to hand over the same to the complainant as per the order of the District Consumer Forum, it was found that one Mr.Brij Bangal along with his family members was/is in possession of the said flat and he refused to hand over possession to the Receiver.  The Receiver accordingly submitted its report on or about 05/07/2007.  Therefore, Mr.Brij Bangal filed an application on 12/07/2007 for intervening in the said execution as intervener and the District Consumer Forum passed an order on the same date directing to maintain statusquo.  When the said application was pending, for the first time, complainant filed an application under section 27 of the Act and invoked the jurisdiction of the District Consumer Forum under section 27.  Said application of the complainant under section 27 was not numbered separately.  It appears to have been presented in a proceeding which was going on under section 25.  The orders which are passed after presentation of application under section 27 will be separately considered in the later part of this order.  What we have to consider in the facts and circumstances of the present case and keeping in mind the provisions of section 25 (3) whether it is permissible, legal and justifiable under the law for the District Consumer Forum to pass such orders in a proceeding under section 25 (3).  Admittedly, in the present case the order under execution was/is a final order passed in the complaint filed by the complainant and therefore, as per analysis of section 25 (new) made earlier in this order, provisions of section 25 (1) & (2) were not applicable.  Said application was preferred on 26/03/2007 and therefore, new provisions of section 25 which were brought into effect from 15/03/2003 were/are applicable.  Since sub-section (1)&(2) of section 25 are not applicable to the final order passed by the Consumer Fora, said powers of attachment of property as provided in sub-section (1)&(2) of section 25 cannot be invoked by the Consumer Fora and therefore, it cannot be said that the order of attachment passed by the District Consumer Forum in the present matter was passed under section 25(1)&(2).  Sub-section (3) of section 25 as stated earlier is not applicable in case of the order wherein the Consumer Fora has given a direction to deliver possession of the property.  Said sub-section (3) of section 25, as stated earlier, is only applicable in case of amount to be recovered in view of directions or orders of the Consumer Fora.  Therefore, the application under section 25 (3) of the Act for delivery of possession of flat B-101, was not maintainable.  Not only that, but sub-section (3) of section 25 does not contemplate taking of possession of any property by the Consumer Fora by itself and/or through the Receiver and hand it over to the complainant or to a person who is entitled to get possession of the property.  Therefore, attachment of the property, appointing a Receiver in respect of said property and direction for delivery of possession of the property as per the order of the Consumer Fora is not a power vested with the Consumer Fora under Section 25(3).  It is now admitted by both the Counsels as stated in earlier part of the order that sub-section (3) of Section 25 is not applicable wherein the Consumer Fora has passed an order for delivery of possession of a property.  Therefore, the only inference follows that when the proceeding is filed under section 25(3) for delivery of possession of the flat in question, the Consumer Fora and in the present case, District Consumer Forum, Mumbai Suburban could not have passed order for attachment of the property, appointment of Court Receiver and delivery of possession to the complainant.  The whole procedure and the orders which were passed by the District Consumer Forum to that effect was/were beyond the scope and powers of the District Consumer Forum, while exercising powers under sub-section (3) of section 25.  As we have analysed this provision of sub-section (3) in the earlier part of this order, under this provision, only a recovery certificate can be granted to the Collector to recover the amount as proceeds of land revenue and in the manner as arrears of land revenue are recovered.  Therefore, the District Consumer Forum while passing an order of attachment of the property, appointing a Receiver of the property and directing the Receiver to deliver possession of the flat in question to the complainant has acted in excess of powers and the jurisdiction vested in the District Consumer Forum in view of provisions of section 25(3).  District Consumer Forum has acted arbitrarily assuming that they possessed all the powers of the Civil Court to execute the orders as were available to Consumer Fora under old Section 25 of Consumer Protection Act, 1986.  Thus, we are pointing out that such a procedure would have been a justifiable procedure if old section 25 would have been maintained by the Legislature on record, but said section has been deleted and a new section 25 has been introduced and brought into force with effect from 15/03/2003 and this aspect has been completely ignored by the District Consumer Forum while passing above referred orders.  It is to be kept in mind at this stage that, why old section 25 has been deleted by the Legislature and the new section has been brought into force having a radical change.  It is to be noted that spirit and the object of the Act is to provide a speedy and expeditious remedy to the consumers in addition to the remedies, which already exist.  Section 3 of the Act makes abundantly clear that the provisions of this Act are in addition to the existing provisions of law.  This Act has provided that complaint shall be disposed of within 90 days and if the complaint cannot be disposed of within period of 90 days, Consumer Fora shall assign the reasons as to why complaint could not be disposed of within 90 days.  Therefore, whole purpose of this legislation is to conduct inquiry of complaint in a summary manner as far as possible within period of 90 days and making it binding on the Consumer Fora to explain as to why complaint could not be disposed of within 90 days, if there is delay on the part of Consumer Fora.  Therefore, whole object of the Act is to see that the remedies which are provided under this Act shall be speedy and expeditious remedy and the consumer shall get the fruits of the orders as immediately as possible.  However, old section 25 by legal fiction treated the order of the Consumer Fora as a decree or order of the Civil Court and permitted the Consumer Fora to execute such order as if it is the decree of the Civil Court.  The provisions of Order XXI of the Code of Civil Procedure were applicable to the execution of orders of the Consumer Fora.  The Consumer Fora can itself execute the orders like a Civil Court.  It also provided that in case the Consumer Fora expressed its inability to execute the orders of the Consumer Fora as a decree, the Consumer Fora may transmit the decree and/or send the decree to the Civil Court for execution and thereafter, Court shall execute the decree.  However, by this procedure, basic intention of the Legislature, namely, to avoid a lengthy, time consuming procedure was frustrated.  It is realized by the Legislature that old Section 25 again relegated the procedure to Order XXI of the Code of Civil Procedure which was desired to be avoided by this legislation and realizing this aspect of the matter, the Legislature has deleted the old section 25 and introduced a new section 25 which we have already analysed.  Thereby, instead of following the lengthy procedure of Code of Civil Procedure of Order XXI, section 25(3) has provided that certificate in respect of amount to be recovered shall be granted to the Collector and the Collector shall recover the said amount as arrears of land revenue and the manner in which the land revenue is to be recovered and thus, the Legislature has achieved its objects to avoid the application of Code of Civil Procedure at least to the extent of enforcement of order passed by the Consumer Fora.  It is to be kept in mind that even while conducting and disposing of the complaint, the Legislature has permitted the application of Code of Civil Procedure to the extent as provided in sub-section (4) of section 13 of the Act.  However, reading section 13(4) with old section 25, whole object of avoidance of application of Code of Civil Procedure appeared to be frustrated and therefore, amendments have been carried out by the Legislature in section 25.  Because, so far as section 13(4) is concerned, it has provided a limited application of Code of Civil Procedure, which is only required for disposal of the complaint.  However, the error which was committed by the Legislature by giving a status to an order of the Consumer Fora to that of decree and providing a procedure of an execution of decree has been corrected by the Legislature by introduction of new section 25.  This aspect has been completely ignored by the District Consumer Forum and instead it has followed the procedure as per old section 25 and this is a serious mistake and fault on the part of the District Consumer Forum.

          The Learned Counsel for the complainant in his written arguments while answering point No.3, namely, whether the District Consumer Forum has committed any error or illegality in attaching the property by purportedly invoking its jurisdiction under section 25 of the Act, has submitted that theme of the Act goes to show that against the interim orders there shall be attachment of the property.  There is outer limit for continuation of the said attachment and therefore, while enforcing the final order passed by the District Consumer Forum, attachment order should not have been passed by the Learned District Consumer Forum.  He has submitted that as the attachment of the property is approved under sub-section (1) of section 25 for enforcement of interims orders passed by the Consumer Fora, the order of attachment of the property passed by the District Consumer Forum while exercising powers under Section 25(3) final order is not tenable in the eyes of the law.  Therefore, this admission on legal point given by the complainant itself concludes that the order of the attachment of the property passed by the Consumer Fora on 18/04/2007 is/was not sustainable in law.

          However, submissions made by the Learned Counsel for the complainant, while making submission on Point No.4 that, “whether in the proceeding under section 25 of the Act, Receiver can be appointed”, are required to be considered in the light of the submissions made by the complainant on Point No.7, namely, whether procedure prescribed under Section 13 & 14 of the Consumer Protection Act, 1986 can be invoked while dealing with the application under section 25 of the Act? If yes, what is extent of it?  It is submitted by the Learned Counsel that Section 13 & 14 of the Consumer Protection Act, 1986 contemplates the procedure of admission of the complaint as well as findings of the Consumer Fora.  However, it is submitted that said procedure cannot be invoked in a proceeding under section 25 of the Act.  But, Learned Counsel has submitted that principles which are mentioned in section 13 & 14 of the Act can be made applicable while passing order under section 25 of the Act.  According to him, section 25 contemplates two situations i.e. an interim order of attachment of the property under Section 25(1)&(2) and issuance of recovery certificate, if some amount is due and payable under Section 25(3).  Consequently, the procedure contemplated under section 13 cannot be made applicable to the proceeding under section 25 in toto or as is where is.  He submitted that on the one hand, section 13 contemplates a procedure on admission of complaint, while section 25 carries heading i.e. Enforcement of the order. Considering the same, it is submitted that the procedure prescribed in section 13 & 14 of the Act cannot be invoked while dealing with the application under section 25 of the Act.  He submitted that under section 13 of the Act, there is reference about some of the provisions of the Code of Civil Procedure, which are made applicable, more particularly sub-section (4),(6)&(7) of section 13 of the Act.  However, in absence of any statutory provision, it cannot be said that such procedure shall be adopted by the Forum below while entertaining an application under section 25 of the Act.  However, he submitted that principles of Code of Civil Procedure can be made applicable in view of keyword in the preamble i.e. “better protection of interest of the consumer”.  While making submission on a point, whether Receiver can be appointed under section 25, Learned Counsel has submitted that the Consumer Fora under the Act are quasi-judicial bodies or quasi-judicial machineries.  However, they have powers of Civil Court such as recording of evidence, issuance of Commission, etc.  He submitted that under sub-section (4) of section 13 for that purpose of admission of complaint, District Consumer Forum has powers as vested in the Civil Court.  He admitted that there is no provision with reference to section 13 of the Act giving powers to the Consumer Fora for enforcement of the orders.  He also invited our attention to sub-section (7) of section 13, which makes Order XXII of the Code of Civil Procedure applicable in case of death of the party, but he has ultimately submitted that there is no provision providing procedure that the provisions of Code of Civil Procedure are applicable for the proceeding under section 25.  So far as appointment of the Receiver is concerned, he submitted that object of appointment of Court Receiver is to preserve and manage the property during pendency of the proceeding.  Therefore, he submitted that obviously, once there is an order for attachment of property under sub-section (1) of section 25, the appointment of Court Receiver in respect of property which has been attached as and by way of execution of an interim order of the Consumer Fora, is permissible and therefore, he submitted that the order of attachment or appointment of Receiver by its nature is known as interim order during pendency of suit or proceeding.  On the same line, appointment of Receiver of the property which is attached in the execution of interim order shall also be an interim order.  He submitted that it is well settled position in law that the Receiver becomes agent of the Court.  The property in respect of which the Receiver is appointed is known as ‘Custodia ligum and therefore, according to the complainant under section 25 of the Act, a Receiver can be appointed.  He made reference to Order 40 of Rule (1) of Code of Civil Procedure as well as Section 44 of the Specific Relief Act and submitted that ample discretion is available to the Court to pass appropriate orders and submitted that the Receiver can also be appointed under the Guardians and Wards Act.  He then made reference to the effect that the Appellate and Revisional Courts can also appoint Receiver and submitted that by adopting said analogy, under section 15 of the Act in the pending Appeal or Revision under section 17, a Receiver can be appointed by the State Commission.  He has submitted that looking to the object of the Act, it goes to show that the Act is enacted for better protection of the consumer. Consequently, “better” contemplates something of a good quality than what is in existence in the eyes of law.  Therefore, ordinarily the appointment of Receiver is permissible in a Civil Court in a pending litigation.  On the other hand for providing better protection of the interest of consumer under section 25, appointment of Court Receiver is permissible.  He has also submitted that there is no provision such as inherent power of the Court as provided in Section 151 of Code of Civil Procedure as there is equally no provision similar to that of 482 of Code of Criminal Procedure.  However, He ultimately submitted that for better protection of the interest of the consumer such power can be exercised.  He submitted that since there is no provision in the Consumer Protection Act, 1986, which makes the order 40 of Code of Civil Procedure applicable to the proceedings before the Consumer Fora and more particularly proceeding under Section 25, yet principles of Order 40 are applicable to the proceeding under the Consumer Protection Act, 1986, particularly, in a proceeding under section 25 of the Act. So far as respondent  is  concerned, the  Counsel has made a reference to  section 13(3-B) and has submitted that that power has not been curtailed on passing final order since words “during the pendency of any proceeding” appearing in said sub-section cannot mean to exclude execution of final order as same has already been passed.  He submitted that there is no provision provided by the Legislation for the Consumer Fora to execute their orders through appointment of Court Receiver as is the provision under Code of Civil Procedure.  It is also more than often stated that Code of Civil Procedure is not applicable to the proceeding under Consumer Protection Act, 1986. He submitted that scope of section 25 is limited to attachment of personal property and auction of the same in case there is no compliance of the order passed by the Consumer Fora under section 13 (3-B).  Learned Counsel submitted that, “Not surprisingly considering the poor drafting, the law is silent that as to who will conduct the auction and the procedure as to how the same would be done.  Thus, after passing an order and issuance of recovery certificate, according to the Learned Counsel for the opponent, District Consumer Forum becomes functious officio.  The only place or scope for the District Consumer Forum is in case of an error, such as recovery certificate issued without knowledge of party having deposited the amount either with the District Consumer Forum or paid to the party, thus to stop and to recall the order of recovery certificate”.  While dealing with section 13 & 14 of the Consumer Protection Act, 1986, Learned Counsel for opponent submitted that these sections are procedural sections where scope of action is defined during the course of disposal of complaint.  While section 14 does state that deficiency has to be removed or unfair trade practice has to be stopped.  Enforcement of such an order can only be a procedure under section 27 for non-compliance and certainly not by the Consumer Fora taking upon itself the responsibility of executing its order of appointment of Court Receiver or Court Commission which is not foreseen in the present enactment. 

          After going through the submissions of both the Learned Counsels, we find that it is submitted by both of them so far as procedure to be followed by the District Consumer Forum while dealing with the application under sub-section (3) of section 25 is concerned, there is no statutory direction in what manner said application shall be disposed of by the Consumer Fora and both the Counsels are in agreement with each other.  However, Learned Counsel for the complainant has tried to justify the order of appointment of the Receiver under section 25 taking a clue from the word “better protection” appearing in the object clause of the legislation.  But, it is to be kept in mind that the preamble or the object of the legislation is always a last resort for interpretation of the Statute.  No doubt, during pendency of the complaint and at the most while complaint is being disposed of, in view of provisions of section 13(3-B) the interim orders can be passed by the Consumer Fora.  Similarly, Revisional or Appellant Authority may exercise said powers.  However, that power can be exercised while dealing with complaint, appeal or the revision which basically arises from the original proceeding of the complaint. 

We are called upon to consider the question of appointment of Receiver of a property, or such order with a direction to deliver a possession of the flat to the complainant as is passed by District Consumer Forum in the present case.  We have dealt with in the earlier part of the order about submissions of the Learned Counsel of the complainant and also of the opponent wherein both of them have agreed that section 25(3) can be invoked only for the purposes of recovery of the amount which is due and recoverable under the orders of the Consumer Fora.  Complainant has accepted that in an application under section 25(3), orders for delivery of possession of movable and immovable property cannot be enforced and therefore, after scrutinizing the provisions of section 25(3), we have come to the conclusion that section 25(3) cannot be invoked by the complainant with desire of getting possession of the property as in the present case, flat No.B-101.  Therefore, once, we find that the application under sub-section 3 of section 25 for delivery and/or taking possession of the property is not tenable and only application tenable is for recovery of the amount due under the order of the District Consumer Forum, then for execution or enforcement of the said order, how attachment of property and/or appointment of Receiver for delivery of property is permissible is a serious question for our consideration.  In fact as we have analysed, the Consumer Fora is supposed to issue a simplicitor certificate of recovery to the Collector and the Collector is supposed to follow the procedure as provided under the Land Revenue Code for recovery of arrears of land revenue.  Therefore, property is not a subject matter of the application under sub-section (3) of section 25 and in the result, attachment of the property and/or appointment of Receiver of the property cannot be done by the Consumer Fora under section 25 (3) of the Act.  Procedure of section 13 & 14 is not applicable while disposing of the application under section 25(3) because under section 25 (3) in fact only inquiry which is required to be carried out by the Consumer Fora is to find out as to whether the opponent has failed to pay the amount due and recoverable under the orders of the Consumer Fora and once, the Consumer Fora finds that the amount is due and recoverable under the orders of the Consumer Fora, Consumer Fora has to issue a certificate to the Collector to recover said amount as arrears of land revenue.  Therefore, the Legislature has rightly and wisely in its wisdom has not provided that section 13&14 will apply to the proceeding under section 25 of the Act more specifically sub-section (3) of Section 25.  One more aspect is required to be considered in the light of submissions of the complainant that on general principle, provisions of Order 40 and/or procedure like Order 40 should be invoked while dealing with the application under section 25(3).  It requires to be stated that Consumer Fora are creature of law and they do not possess an inherent power as rightly argued by the complainant and therefore, power like 151 of Code of Civil Procedure and/or Section 482 of Code of Criminal Procedure are not available to the Consumer Fora.  There is one more hurdle in our way.  The Hon’ble National Commission has framed Regulations in 2005 and the Regulation No.26 provides that in all the proceedings before the Consumer Fora, endeavour shall be made by the parties and their Counsel to avoid the use of provisions of Code of Civil Procedure, 1908: Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules and regulations made thereunder.  Therefore, unless and until the Act and the Rules prescribed for an application of specific provisions of Code of Civil Procedure, said provisions cannot be applied and to that effect, there is mandate of the National Commission.  We find that section 13 (4),(6)&(7) provided a limited application of Code of Civil Procedure, that too in respect of complaint.  But, we find that in view of provisions of sub-section (3-B) of section 13 by way of an interim relief, attachment of property and appointment of Receiver while complaint is pending is permissible.  However, same may not be permissible when the Consumer Fora is dealing with an application under sub-section (3) of section 25.  Firstly, because the property is not a subject matter of an application under sub-section (3) of section 25 of the Act and secondly, the Act and the Rules does not permit application of section 13(3-B) in proceeding under section 25(3) and thirdly, looking to the scope or manner of inquiry to be conducted under section 25(3), the interim relief as claimed for appointment of Receiver for delivery and execution of orders of the Consumer Fora is not permissible.  Therefore, after having considered the submissions of both the Counsels and the facts and circumstances of the case, we hold that the orders passed by the District Consumer Forum in the present case attaching the property and appointing the Receiver so as to take possession from the opponent to deliver it to the complainant are bad, illegal and those orders are in excess of powers of jurisdiction of the Consumer Fora and therefore, they are required to be set aside or declared as non est in law.

          Now, it is necessary for us to consider section 27 because, it appears that in a pending proceeding under section 25, complainant gave an application on 13/09/2007 invoking jurisdiction of the District Consumer Forum under section 27 so as to punish the opponent for offence under section 27 of Consumer Protection Act, 1986 and for non-compliance and/or omission to obey the order passed by the District Consumer Forum, referred to above.  Copy of this application is given to the other side, namely, to the opponent/respondent.  In this application under section 27 only opponent is original opponent.  Mr.Brij Bangal, third party intervener is not an opponent.  After filing of this application, we have noted that on several dates, bailable and non-bailable warrants were issued and the appeal has been filed by the opponent as against the order dated 22/09/2009 by which non-bailable warrant has been issued by the District Consumer Forum.  The appeal is directed against said issuance of non-bailable warrant.  We do not want to repeat the facts.  However, we desire to consider the scope of section 27 and 27-A of the Consumer Protection Act, 1986 in the facts and circumstances of the present case.

          Old section 27 was as follows :-

“27. Penalties – 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 Consumer 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 `2,000/- but which may extend to `10,000/-, or with both: provided that the District Consumer Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section.”

This section has undergone a change by Act 50 of 1993.  By this Act the word “or the complainant” wherever it appeared has been inserted with effect from 18/06/1993.  As a result of this amendment, namely, insertion of word “or the complainant”, the complainant has also been brought under the purview of this section in case the complainant fails or omits to comply with the order of the Consumer Fora.  Earlier to insertion of words “or the complainant”, said section was only applicable as against the trader or a person against whom a complaint is made, but with the amendment of Act 50 of 1993 since 18/06/1993, application under section 27 can be filed as against the complainant also in case he fails or omits to comply with the order of the Consumer Fora.  In short since 18/06/1993 both the complainant and opponent are liable to be punished in case they fail or omit to comply with the order of Consumer Fora.

This section was/is further modified by the Legislature by an amendment Act 62 of 2002 which has come into force with effect from 15/03/2003.  Now the new section is as follows :-

“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 Consumer 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 `2,000/- but which may extend to `10,000/-, or with both.

(2)     Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Consumer 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 Consumer 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 Consumer Forum or the State Commission or the National Commission, as the case may be.”

          On bare comparison of both sections, it will be evident that proviso which provided for a lesser punishment than the minimum punishment under the old section 27 has been deleted by the Legislature and the amendment Act 62 of 2002 has added sub-section (2) and sub-section (3) and renumbered the original section 27 as sub-section (1).  It will be seen that the old section gave powers to the Consumer Fora to punish a person against whom a complaint is made or complainant who fails or omits to comply with the orders made by the Consumer Fora.  However, said section was not providing the manner in which and the procedure which shall be follows by the Consumer Fora while deciding the application.  Said old section was not providing in what capacity so far as criminal law aspect is concerned, the Consumer Fora were exercising the powers.  In short, the power to punish was vested with the Consumer Fora without providing for a procedure to be followed in accordance with the criminal law and without giving status under the criminal law and there appears to be number of objections raised by the parties when power under section 27 is exercised by the Consumer Fora.  No doubt, said old section has been held to be constitutionally valid in the reported judgement in the matter of State of Karnataka V/s. Vishwabarathi House Building Co-op. Society & Ors., I(2003) CPJ 1 (SC). But, in that circumstance, still there was dilemma as to what procedure shall be followed.  There is equally a question whether punishment is civil punishment, to be kept in civil prison and/or a criminal punishment which is imposed for an offence committed.  So, in order to overcome all these problems in respect of old section 27, amendment has been carried out and now, we have a section 27 with three sub-sections.  Not only that, but as against the order of punishment imposed under the old section 27, there was no appeal provided under the Act, and therefore, it was again a question whether the said appeal is to be entertained under section 15 or a revision under section 17(1)(b) and/or under section 21(b) and therefore, along with the amendment in section 27 by addition of sub-sections (2)&(3), the Legislature has also introduced section 27-A by providing an appeal against the order passed under section 27.  Sub-section (2) of section 27 now introduced a legal fiction and status is given to Consumer Fora that the Consumer Fora shall have powers of Judicial Magistrate of the first class for the trial of offences under this Act, and the Consumer Fora are further conferred with the said powers and declared deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).  Therefore, deficiencies which were existing in respect of status and powers of Consumer Fora in the old section 27 has been filled in and corrected by sub-section 2 of section 27 and thus, now the Consumer Fora are deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure and they have powers of Judicial Magistrate of the first class for the trial of offences under this Act.  This status and the power of a Judicial Magistrate of the first class have been given for the purpose of trial of offence under this Act by following the Code of Criminal Procedure, 1973, but notwithstanding anything contained in the Code of Criminal Procedure, 1973.  Sub-section (3) of section 27 has provided that all offences under this Act may be tried summarily by the Consumer Fora.  Thereby, offences under this Act are required to be tried in a summary manner, inter alia it follows that the summary procedure for trial of criminal case as provided in the Code of Criminal Procedure is required to be followed by the Consumer Fora while dealing with the application under section 27.  It is to be noted that non obstante clause in sub-section (2) of section 27 is applicable in respect of declaration of status, namely, of Judicial Magistrate and vesting all the powers of Judicial Magistrate of the first class for the trial of offence under the Act.  Said non obstante clause is not completely applicable in respect of the provisions of the Code of Criminal Procedure and therefore, said non obstante clause has to be read in conjunction with subsequent part of said Section as that of deemed status of Judicial Magistrate of the first class and to that limited extent, non obstante clause as provided in sub-section (2) of section 27 will apply.  In the absence of non obstante clause, otherwise, it would have been necessary for Consumer Fora, to get said power and status of Judicial Magistrate, conferred upon Consumer Fora from High Court and State Government, as provided in Code of Criminal Procedure.  [See Section 11 of said Code].  Now, in view of sub-section 2 of Section 27, such procedure is not required to be followed for confirmation of status and powers of Judicial Magistrate on Consumer Fora.  This non obstante clause and its limitations are being considered in the light of the following provisions of the Code of Criminal Procedure apart from the above analysis :–

4.  Trial of offences under the Indian Penal Code and other laws – (1) all offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2)   All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5.   Saving – Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

6.  Classes of Criminal Courts – Besides the High Courts and the Court constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely :- (only relevant typed) –

26.   Courts by which offences are triable – Subject to the other provisions of this Code –

(a)     ……….

(b)     any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by –

          (i)      the High Court, or

(ii)     any other Court by which such offence is shown in the First Schedule to be triable.

29.            Sentences which Magistrates may pass – (1)  Not relevant

(2)     The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding `10,000/-, or both.

30.     Sentence of imprisonment in default of fine – (1) The Court of Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law :

          Provided that the term –

(a)             is not in excess of the powers of the Magistrate under section 29;

(b)             shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

(2)     The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29.

Thus, on reading sections 4&5, it is clear that the Consumer Fora which are constituted as deemed Judicial Magistrate of the first class for the purposes of the Code of Criminal Procedure to try the offences under this Act are dealing with the offences under “any other law than the Indian Penal Code” when they are exercising powers under section 27 of Consumer Protection Act, 1986.  Section 27(1) makes out and states the offence and the punishment for the said offence.  It also states that who can be punished and who can punish.  Sub-section (2) of section 27 as stated earlier, gives power to try the offence under this Act and the status of Judicial Magistrate of the first class to Consumer Fora for the purposes of the Code of Criminal Procedure.  Therefore, reading these provisions along with Sections 4(2)&5 of Code of Criminal Procedure, the Consumer Fora being a Judicial Magistrate of the first class has to follow the procedure as provided in the Code of Criminal Procedure, however, subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.  It has been also declared by Section 5 of Code of Criminal Procedure that nothing contained in this Code shall, in the absence of specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.  So, on reading these provisions it follows that the procedure as provided in the Code of Criminal Procedure is required to be followed subject to and without affecting to the procedure as provided in any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force.  In short, the procedure as provided in the special law will prevail upon and will modify the procedure as provided in the Code of Criminal procedure to the extent as is stated in the special law and the special law will prevail to the extent of provisions as provided in the special law as against the General Criminal Procedure Code.  Thus, looking to the provisions of section 27 (2)&(3) of the Act, at the cost of repetition, it is held that the Consumer Fora being a deemed Judicial Magistrate of the first class for the purpose of Code of Criminal Procedure shall have the powers of Judicial Magistrate of the first class for the trial of offence under this Act and said deemed Judicial Magistrate of the first class shall try offence under this Act summarily.  In view of this, Chapter XX & XXI of Code of Criminal Procedure will be applicable to trial under section 27.  Chapter XXI deals with summary trials by a Criminal Court and therefore section 260 & 265 will have to be followed by the Consumer Fora while exercising powers of Judicial Magistrate of the first class under section 27.  Section 262 which provides for procedure for summary trial states that the procedure specified for trial of summons-case shall be followed except as hereinafter mentioned.  In view of this, Chapter XX of Code of Criminal Procedure deals with the trial of summons-cases by Magistrate may equally apply.  However, any part of these provisions, namely, Chapter XX & XXI, which are otherwise than the special procedure provided under section 27 (2)&(3) shall not be followed.  For example, section 262 sub-section (2) provides no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.  Therefore, a query may raise, if the procedure as provided under this Chapter is to be followed, conviction exceeding three months cannot be granted.  Since this provision is otherwise than the conviction provided under section 27 (1) will not be applicable in view of provisions of section 4(2) & (5) of the Code of Criminal Procedure, referred to above.  Therefore, reading sub-section (2) & (3) of section 27, we find that only these provisions as incorporated in Chapter XX & XXI are applicable for the trial of the case.  However, trial of the case is one part and dealing with the case is another part from its inception.  The power of trial is given and so also the Consumer Fora have been made Judicial Magistrate of the first class for the purposes of the Code of Criminal Procedure.  In short, therefore, accepting the limitation and procedure in sub-section (2) & (3) of section 27 and subject to these provisions, other provisions of the Code of Criminal Procedure will be applicable for dealing with the application  under section 27 by the Consumer Fora.  It is to be noted that section 29 (2) of Code of Criminal Procedure which states the power of Judicial Magistrate of the first class provides that he may pass a sentence of imprisonment for not exceeding three years, or of fine not exceeding `10,000/-, or both, the said provisions of Code of Criminal Procedure and the provision as contained under section 27(1) providing power of punishment is one and the same.  Thus, what we find that to the extent of difference in the procedure, Code of Criminal Procedure will not be applicable and in that circumstances, procedure and provisions as provided in the Consumer Protection Act, 1986 will survive as it is other law or a special law providing for the offences and trial of offences.  Same will be a position while dealing with appeal under Section 27-A of Consumer Protection Act, 1986.

In the result, following procedure is required to be followed in an application under section 27 i.e. whenever the application under section 27 is presented by the applicant, the Consumer Fora shall satisfy itself on examination or verification that there is failure or omission to obey the order of Consumer Fora by opponent and shall take a cognizance under section 190 of Code of Criminal Procedure and shall issue summons process for the appearance of accused/opponent along with copy of application.  After summons is served on the other side, namely, opponent/accused, he shall appear before the Consumer Fora alias Judicial Magistrate of the first class and shall submit an application for the purpose of getting a bail so as to secure the presence and attendance of the opponent/accused.  If on the date of first appearance, opponent remains absent, the Consumer Fora may consider to pass an order for bailable warrant to secure the presence.  If on the first date, opponent/accused appears either personally or through Advocate and if it is not possible to proceed for summary trial as provided under the Act, opponent/accused shall submit an application for bail and the said application shall be dealt with by the Consumer Fora on its own merits.  However, the Consumer Fora will keep in mind that the bail is rule and jail is exception and thus, consider the application for bail.  If after grant of bail, opponent/accused furnished personal bond and surety as directed by the Consumer Fora, same shall be accepted by the Consumer Fora as Judicial Magistrate of the first class and the forms of PR Bond and Surety as provided under the Code of Criminal Procedure may be followed.  If for whatever reasons, the opponent/accused is not possessed of surety along with him on the first day of appearance, then, the opponent/accused may submit an application to release him on execution of PR Bond and further requesting to grant time for furnishing the surety of the bail.  Such application may be considered by the Consumer Fora in its discretion in accordance with law.  The Consumer Fora shall see that before the next date, bail bonds are executed.  If it finds after service of summons and/or after the appearance and execution of PR Bond and/or bail as surety, opponent/accused remained absent, the Consumer Fora acting as Judicial Magistrate of the first class may issue a bailable warrant and if at that time only PR Bond has been executed may forfeit the PR Bond and proceed for recovery of said amount.  If, on that date, it is found that bail bond has already been executed but the opponent/accused is absent, the Consumer Fora acting as the Judicial Magistrate of the first class may issue notices to the sureties to secure presence of the opponent/accused and equally to show-cause why the amount of bail shall not be forfeited and recovered from the sureties.  If the sureties secured the presence of the opponent/accused and/or opponent/accused himself appeared and/or is brought under bailable warrant, the Consumer Fora may consider as to whether further the opponent/accused shall be kept on bail or not.   The Consumer Fora has also to keep in mind that these cases under section 27 shall not be treated as regular criminal trials, but they shall try to deal with these cases in the summary manner as provided under the Code of Criminal Procedure Chapter XX & XXI and therefore, instead of allowing the opponent/accused protracting the criminal trial either by remaining absent and/or by any other method, the Consumer Fora while acting as Judicial Magistrate of the first class under section 27 shall be diligent and prompt to conclude the summary trial as provided under Chapter XX & XXI.  It is to be noted that in proceeding under section 27, it is not expected that opponent/accused shall explain by filing a reply as to why he could not comply with the order.  Such procedure is not contemplated in the Criminal Court.  Therefore, by following the procedure as early as possible, the Consumer Fora shall explain the substance of accusation to the opponent/accused as provided under section 251 and shall record a plea of guilt and thereafter follow the procedure as stated in section 263 & 264 and deliver a judgement as provided under section 265.  This procedure is required to be followed.  We have noticed that such procedure is not followed.  Instead, the Consumer Fora go on liberally granting time to the opponent/accused and thus cases are pending for years together.  We have also noted that some of the District Consumer Forums go on accepting part payments instead of concluding a trial as expected under section 27 of the Act.  Section 27 contemplates a total compliance of the order.  It is a criminal action, so as to have deterrent effect on a person who is supposed to obey the orders of the Consumer Fora, so as to give earlier reliefs to the consumer.  Therefore, instead of providing a civil remedy, the Legislature has deleted old section 25 and modified section 25 and so also carried out amendment in section 27 by introduction of sub-section (2) & (3) and the Legislature desires that there should be an immediate implementation of the orders and therefore, while disposing of the complaint filed under section 12, summary procedure is provided under section 13 & 14 and similarly the speedy and expeditious procedure has been provided for implementation of execution of interims orders of the Consumer Fora.  So also sub-section (3) of section 25 is introduced for limited purpose of amounts recoverable under the orders of the Consumer Fora.  So also the section 25 has been modified so as to implement any order, namely, interim order, final order or any other orders.  Under section 27, all types of orders, namely, recovery of the amount, delivery of possession of the property, substitution of the goods, etc. can be executed by following procedure as laid down under the said section and explained in the above paras of the judgement.  In short, the Legislature intends to give a fastest relief.  That has to be kept in mind as a motto for the earliest disposal of the cases by the Consumer Fora.  Only restraint, the Consumer Fora has to observe that the justice hurried shall not be justice buried, but the Consumer Fora shall do it by following the procedure as laid down under the law.  Therefore, keeping in mind this aspect, the application under section 27 shall be dealt with by the Consumer Fora while acting as Judicial Magistrate of the first class.  Therefore, the Consumer Fora has to follow the procedure as stated above.  It is required to be mentioned that the remedy under section 27 is not a civil remedy, but is a criminal remedy.  It results into a punishment of an imprisonment, recovery of fine or both.  It has deterrent effect, so that the opponent/accused obeys or complies with the order of the Consumer Fora.  This distinct and separate remedy is available to the consumer.    This remedy is quite a distinct and different from the remedy available under section 25(3) for recovery of the amounts under the orders of the Consumer Fora.  That remedy is a civil remedy under which the ultimate power of execution of orders of the Consumer Fora is vested with the Collector or nominees of the Collector on the basis of certificate-the amounts are recovered as arrears of land revenue.  The limitation in respect of that remedy, we have considered in earlier part of this judgement namely, recovery of the amount, but any other orders passed by the Consumer Fora cannot be executed under section 25(3).  However, under section 27 any order, namely order for recovery of the amount and for delivery of possession of immovable property, substitution and/or giving of new goods after accepting old goods, etc. can be executed by punishing persons after trial as provided in Section 27(3) of Consumer Protection Act, 1986. Therefore, these two remedies which required a distinct and separate procedure to be followed by the Consumer Fora can not be clubbed together.  However, it will be open for the complainant or the person who is entitled to execute the orders of the Consumer Fora to follow both the remedies simultaneously by filing a separate application.  A composite application under Section 25(3) and 27 shall not be tenable.  If any of the parties files a composite application, then the Consumer Fora shall give choice to select his remedy and/or shall give direction to file separate application.  It will not be open for the opponent to contend that the person entitled to execute the order shall follow the proceeding under section 25 first in case the order of Consumer Fora is of recovery of the amount.  The person entitled to execute the order may simultaneously file two separate proceedings and the Consumer Fora may proceed to dispose of these two proceedings by following separate and distinct procedure as pointed out under this judgement and order. 

In the result, the view that both the proceedings can be conducted jointly is not correct, but view that both the proceedings may be filed simultaneously and continued simultaneously before the Consumer Fora is a correct view in respect of section 25 and section 27.  It requires to be explained that section 25(1)&(2) which is applicable to the interim orders and section 27 which equally applies to the interim orders can be filed simultaneously and continued simultaneously, but both the proceedings for execution of interim orders cannot be clubbed together as these are separate, distinct proceedings, one being civil and other being criminal.  Therefore, we record the finding that whether it is an interim order or final order, proceedings under section 25 & 27 are separate and distinct proceedings, one being a civil and other being a criminal for which separate and distinct procedure has been provided under the Act as we have discussed in the above paras and therefore, separate, simultaneous proceeding under section 25 & 27 is permissible, but a joint, clubbed proceedings is not permissible and tenable in law.

Coming to the facts of the present case, therefore, application given by the complainant in a pending proceeding under section 25 on 13/09/2007 was not in fact tenable.  On the contrary, District Consumer Forum shall have registered said application separately and commenced the proceeding under section 27 as discussed above.

So far as complainant is concerned, complainant has stated that section 27 is applicable in respect of interim and final orders passed by the Consumer Fora.  The procedure which we have dealt with has been also considered by us in the matter of Shri Kiran Kashinath Wagh V/s. Shri Sunil Nivrutti Shimpi in First Appeal No.988/2009 decided on 01/12/2009 and in the matter of Shri Abhijit Amrutrao Bedake & Ors. V/s. Shri Swarkanath Dagduram Karwa & Ors. in Revision Petition No.140/2009 decided on 15/12/2009 and therefore, he has stated that procedure which is required to be followed to deal with the application under section 27, is already dealt with in the above judgement of this Commission and therefore, there is no necessity to give further submissions.  So far as, filing of the proceedings under section 25 & 27 together, the complainant has submitted that there can be a composite application under section 25 as well as 27 or simultaneous application under section 25 or 27 and also possible to entertain the application independently as well as distinctly.

          On considering the submissions of the org. complainant what we find that we have initially dealt with the procedure to be followed in an application under Section 27 of Consumer Protection Act, 1986 in two judgements already delivered.  First judgement has been delivered on 01/12/2009 in the matter of Shri Kiran Kashinath Wagh V/s. Sunil Nivrutti Shippi (First Appeal No.988/2009) arising from the consumer complaint No.68/2002 from District Consumer Forum, Nashik.  We had also an opportunity to deal with said Section 27 secondly, in a judgement delivered on 15/12/2009.  This judgement was delivered in the matter of Shri Abhijeet Amrutrao Bedake V/s. Shri Dwarkanath Dagduram Karwa in Revision Petition No.140/2009.  As rightly observed by the Learned Counsel, in view of these two judgements, it is further not necessary to elaborate the procedure under Section 27 to be followed by the District Consumer Forum.  However, we make it clear that the District Consumer Forum shall also while reading this judgement shall read those judgements along with this judgement so as to understand the complete scheme of execution as provided under the Consumer Protection Act, 1986.  So far as submissions of Learned Counsel for the complainant that the proceedings under Section 25 & 27 can be filed together in a composite manner, we are not in agreement with the Learned Counsel.  However, we find it possible that simultaneously, application under Sections 25 & 27 by separate proceeding before the District Consumer Forum is possible.  Learned Counsel also has conceded to this position.  Therefore, only submission of the Learned Counsel which required to be rejected is that the composite application under Sections 25 & 27 is not tenable.  We have given reasons for this finding in the earlier part of the judgement, namely, these two proceedings are quite different and distinct proceedings under the law, one being a civil one and another being a criminal one.  We do not desire to repeat the same again at this stage.

          The other important question which requires consideration in the light of the facts involved in the present matter and similar questions are arising in the different matters which are pending before the State Commission is as to whether a third party proceeding is contemplated while execution application under Sections 25 & 27 is filed by the party.  This requires to be considered in the light of facts in most of the cases, where there are question of delivery of immovable property in favour of the complainant and/or in favour of the opponent, it is found sometimes, that in order to defeat the order of the Consumer Fora, property in question, namely, flats are transferred by the builders/developer and/or sometimes flats are repaired by the complainants because they are not satisfied with the flats.  Said complainants have also transferred the flats.  Therefore, whenever the order is passed for delivery of such property and when the execution applications are filed and they are dealt with by the Consumer Fora as per old procedure, ignoring the new section, the application after application are coming from the persons who are not party to the complaint, but who are in possession of the property.  Therefore, third party may either file an appeal and/or intervention in the execution proceeding and thereby, execution applications either under Section 25 and/or under Section 27 are prolonged and series of litigation is generated between the parties.  Therefore, question which requires to be considered is, “as to whether in proceeding under Sections 25 & 27, a third party proceeding is tenable?”

          In the earlier part of this judgement, we have dealt with new Section 25 and we have analysed and recorded our finding that Section 25(1)&(2) applies only in respect of interim orders which are not obeyed by the party.  Thus, said Section 25 (1)&(2) is not applicable in cases where final orders have been passed by the Consumer Fora in the consumer complaints.  We have also held while dealing with sub-Section (3) of Section 25 that sub-Section (3) can also apply while executing the orders for recovery of the amounts as directed by the Consumer Fora from either party at interim stage or at final adjudication of the complaint.  Therefore, Section 25 (3) applies in respect of orders of recovery of the amount at interim stage and also at final adjudication of the complaint.  However, distinction has also been made that Section 25(3) will apply only in respect of recovery of the amounts due as per the orders of the Consumer Fora.  If, order of Consumer Fora does not speak about recovery of amount, Section 25(3) will not be applicable either in case of interim order or in case of final order.  Therefore, touchstone on which application of Section 25(3) can be considered is – whether order either interim or final passed by Consumer Fora is about the recovery of amount or not.  If, it is not so, Section 25(3) cannot be invoked.

          Section 25(1) contemplates attachment of the property of the person who is not obeying and following the interim order passed by the Consumer Fora.  Therefore, property which is attached by the Consumer Fora for non-compliance of the interim order may be a subject matter of the complaint and/or may not be a subject matter of the complaint, but it shall be a property of the person, who is under obligation to obey the interim order.  The word “property” includes both movable and immovable property.  This attachment remains in force for period of three months and if at the end of three months, interim orders of the Consumer Fora are not obeyed, then the Consumer Fora can sell away said property and out of said proceeds can give damage or compensation to the person in whose favour interim orders stands.  After paying such compensation, if there is a surplus proceeds, the Consumer Fora may return it to the person entitled.  Here it requires to be considered that in such a case sometimes, possibly the property which is standing in the name of third person may be attached and/or a property in which third person may have an interest may be under the attachment.  What we find that if said interest of third person has been created during pendency of the complaint, said interest will be affected by the principle of lis pendens and therefore, such person will not be entitled for any relief from the Consumer Fora because the very object of creating such interest is to defeat the order of the Consumer Fora.  However, if said interest of third person has been created prior to attachment of the property and if this is brought to the notice of the Consumer Fora, then the Consumer Fora will have to consider said application of the third party.  Therefore, what we find that in an application under Section 25(1)&(2) pending for execution while the property is under attachment and/or has been sold & third party claimed right in the said property, third party application will have to be entertained by the Consumer Fora and will have to decide said application.

          However, while considering the application under Section 25(3), third party application before the Consumer Fora will not be tenable.  We have discussed the procedure to be followed while dealing with application under Section 25(3) in the earlier part of this judgement.  We have also dealt with the manner in which the Collector shall proceed to recover the amount of the certificate given by the Consumer Fora.  The procedure from the Land Revenue Code has also been dealt with in this judgement.  What we have analysed is that whenever application under Section 25(3) has been filed, Consumer Fora has to see whether the amount is due and payable from the opponent on the date of filing of the application under Section 25(3) and whether said amount has been paid by the opponent or not and if the amount has not been paid, then the Consumer Fora shall issue a certificate in favour of the applicant directing the Collector to recover the amount due under orders of the Consumer Fora as arrears of land revenue.  Therefore, while dealing with the application under Section 25(3), Consumer Fora is not dealing with any property, but it only looks to the order for recovery of the amount and if finds that the due amount has not been paid, certificate is issued.  Therefore, in an application under Section 25(3) third party proceeding is not contemplated and Consumer Fora shall not entertain any third party application when the application under Section 25(3) is pending before the Consumer Fora.  If after grant of certificate, while Collector proceeds to recover the amount and/or sell the property of the person against whom the certificate has been issued and if third party is affected by said sale, such third person is entitled to make an application for setting aside the attachment and sale of the property under the Land Revenue Code which prescribed a procedure for recovery of land revenue (please refer to Sections 210 of the Maharashtra Land Revenue Code, 1966).  Therefore, remedy of the third person is to refer to the application before the Collector and not before the Consumer Fora.

          We have already recorded our finding that the remedy of execution under Section 27 is available to all types of orders passed by the Consumer Fora.  That means Section 27 applies in respect of interim orders and in respect of final orders.  Ultimately, Section 27 applies in respect of orders for recovery of the amount and in respect of orders of the Consumer Fora for delivery of possession and/or substitution of goods and/or any other orders passed by the Consumer Fora for performance of the duties of either parties and if there is a failure to discharge said obligation, the person who is under obligation to perform said order is to be punished as per provisions of Section 27.  Section 27 is a criminal proceeding and the Consumer Fora is supposed to impose a punishment as prescribed in Section 27(1) by following the procedure as we have discussed in the earlier part of this order.  Therefore, while dealing with the application under Section 27, the Consumer Fora, namely, District Forum as Judicial Magistrate of First Class has to proceed as per the procedure, which we have analysed in this judgement and two earlier judgements referred to in this judgement.  In short, in an application under Section 27, a third party proceeding and/or an intervention is not permissible and no District Consumer Forum as acting as Judicial Magistrate of First Class shall allow third party intervention in an application under Section 27.  It is a simplicitor criminal summery proceeding as stated in Section 27.

          Thus, we have discussed provisions of Sections 25 & 27 as this stands on the Statute Book as on today.  We have considered their scope and the various problems which are arose while dealing with the execution applications.  We have compared those Sections with earlier Sections 25 and 27. 

          The last but important question which requires serious consideration is tenability in respect of Appeal No.1190/2009 which is filed by the builder/developer-Mr.Amir Ali Tharani.  Said appeal is directed as against the order passed by District Consumer Forum below in Recovery Application No.24/2007.  We have already quoted a chequered history of this litigation in the earlier part of this order and have explained in what circumstances the order dated 22/09/2009 passed rejecting application seeking time for compliance of the offer given by the org. opponent/appellant and after rejection of said application, District Consumer Forum has issued non-bailable warrant of arrest returnable on 26/10/2009.  In a detailed factual matrix, we have given complete story of the litigation till the stage said Recovery Application No.24/2007 was rejected by the District Consumer Forum and we have clarified in the initial part of the order that Appeal No.1190/2009 is directed as against the order of rejection of Recovery Application No.24/2007 and order of issuance of non-bailable warrant.

          After the appellant/opponent has filed this appeal, it appears that said appeal appeared on 29/09/2009 before the State Commission and notice before admission was issued returnable on 25/02/2010 and till the returnable date execution of the impugned order dated 22/09/2009 passed by District Consumer Forum, Mumbai Suburban in Recovery Application No.24/2007 was stayed on certain conditions, namely, deposit of `25,000/-.  It appears that said order is stayed upto 25/02/2010, but in subsequent part, it is equally stated that in the first instance, it is stayed upto 06/10/2009.  Let the fact as it is.  We need not comment upon this interim order at this stage.  However, respondent/org. complainant thereafter has appeared by filing a Misc. Application No.1613/2009.  This application was filed by the complainant to get the stay vacated.  But, surprisingly, instead of taking hearing on stay order and to consider it on merits, the Bench of State Commission observed that we do not want to entertain this application at this stage and directed both the parties that they should see that the flat in occupation of Mr.Brij Bangal, Intervener be get vacated with the help of police.  According to the State Commission, that was the only solution that found at that juncture to be immediately acted upon and the appeal was posted on 25/02/2010.  Apart from this application, there was a preliminary objection raised by Advocate for the respondent in respect of maintainability of the said appeal and the written notes have been submitted on record by the respondent, those were also not considered by the Members of this Commission.  Now, therefore, this point requires to be considered. 

          In short this appeal is directed against the order of issuance of non-bailable warrant as against the appellant/org. opponent.  The above referred facts will show that the opponent had exhausted all the remedies as against the order passed in complaint by filing various proceedings as narrated above.  It is further to be noted that this matter has arisen from proceeding under Section 25 in which subsequently, an application under Section 27 has been given by the complainant and we have already dealt with this aspect in the earlier part of this judgement.  The only question which we have to consider as to whether the order of issuance of non-bailable warrant is an appealable order before the State Commission.  We tried to find out from the appeal memo under which section the present appeal has been filed.  Learned Counsel for the appellant Mr.Patwardhan submitted that this is an appeal under Section 27-A and/or he tried to submit that this appeal is under Section 15 also.  As against that Mr.Warunjikar, Learned Counsel appearing for the respondent/org. complainant submitted that Section 15 is not applicable.  According to him, Section 15 deals with an appeal as against the order passed in a complaint by the District Consumer Forum and he submitted that the order of issuance of non-bailable warrant is not passed in a complaint and therefore, appeal under Section 15 is not competent.  Advocate Mr.Patwardhan submitted that his appeal can be considered under Section 27-A.  Learned Counsel Mr.Warunjikar submitted that the order challenged is an interim procedural order of the District Consumer Forum passed in a capacity of Judicial Magistrate First Class in a proceeding under Section 27 and he submitted that the orders which are contemplated to be challenged under Section 27-A are the final orders and not the interim, interlocutory and procedural orders passed under Section 27.  Therefore, it has become necessary for us to consider whether present appeal is competent under Section 27-A.

          Section 27-A is as follows :-

          “27-A.  Appeal against order passed under Section 27 – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from –

(a)             the order made by the District Forum 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 aforesaid, no appeal shall lie to any Court from any order of a District Forum or a State Commission or the National Commission.

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

          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, is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.”

          We have found that there was mess of orders passed by various District Consumer Forums under Section 27.  Now, we have made it clear that Section 27 is a criminal proceeding to be conducted by the District Consumer Forum as a Judicial Magistrate First Class in accordance with the procedure provided under sub-Section 3 of Section 27.  We have also dealt with this in this order and how and to what extent Code of Criminal Procedure is applicable to a proceeding under Section 27.  What we therefore find that whenever application under Section 27 is filed and the District Consumer Forum as a Judicial Magistrate First Class is satisfied that that the opponent has failed to or omitted to comply the order made by the District Consumer Forum, District Consumer Forum shall proceed to take a cognizance of said offence and issue summons to the opponent.  At the cost of repetition, we suggest that after service of summons, opponent is expected to appear and as per the Code of Criminal Procedure, he is supposed to give a bail bond and PR bond for his attendance in the said case.  If he fails to attend the District Consumer Forum, while acting as Judicial Magistrate First Class, District Consumer Forum has also supposed to issue initially a bailable warrant and thereafter, if bailable warrant is also not obeyed, a non-bailable warrant.  Therefore, bailable or non-bailable warrant which the District Consumer Forum has issued as a Judicial Magistrate First Class in a proceeding under Section 27 is to secure presence of the opponent/accused in a proceeding under Section 27.  Therefore, whenever such orders are passed, they are interim orders for securing presence of opponent/accused.  By this order, rights of the parties are not adjudicated, but those orders are issued on the basis of fact of absence of opponent and on repeating absence of the opponent and therefore, these are simplicitor interim orders without adjudication of rights of the parties and they does not affect the rights of the parties.  The only way left out to the party is to appear before the District Consumer Forum, make an application for cancellation of non-bailable warrant giving sufficient reasons for absence and get released on bail during trial.  If it is a bailable warrant, then also party can give a bail and attend the District Consumer Forum.  In short, presence of the accused/opponent is to be secured for trial of the case is the object of said order.  Final order in Application under Section 27 may be of the following types :-

a)                 that the opponent is convicted as per provisions of Section 27(1);

b)                that the opponent is discharged having found that he has obeyed the order;

c)                 that the opponent is acquitted of the charge under Section 27(1); and

d)                rejection of application under Section 27.

So, whenever the opponent is convicted he is aggrieved party and whenever there is acquittal, discharge and/or rejection of application under Section 27, it is the complainant who is an aggrieved party and these aggrieved parties can filed appeal under Section 27-A both on facts and law as provided in Section 27-A.  What is important to be noted is that Section 27-A is a quite distinct and different provision than the provisions in the Code of Criminal Procedure dealing with similar situations and therefore, Section 27 starts with non-obstante clause, namely, notwithstanding anything contained in the Code of Criminal Procedure, 1973, an appeal under Section 27-A, both on facts and law shall lie from the order made by the District Consumer Forum to the State Commission, etc.  Distinction which has to be kept in mind is that, that for both the parties, namely, applicant under Section 27 and/or the opponent in application under Section 27, the remedy is, appeal under Section 27-A.  The procedure as contemplated in respect of appeal against acquittal or discharge in a Code of Criminal Procedure is not applicable.  As against rejection of complaint, different remedies are available in the Code of Criminal Procedure.  However, those provisions will not be applicable in proceeding under Section 27.  However, whenever application under Section 27 is rejected, appeal as provided under Section 27-A is available to the applicant.  In case of conviction also right of appeal is available to the opponent and therefore, since procedure provided under Section 27 is different than provided in the Code of Criminal Procedure, the procedure as provided under Section 27-A will prevail upon the procedure of Code of Criminal Procedure.  However, the main question is, that that this Section 27-A states that the appeal under Section 27-A shall lie on facts and law from orders of Consumer Fora.  Taking recourse to the word “order”, Learned Counsel Mr.Patwardhan submitted that any order, namely, whether it is interlocutory, interim, procedural and/or final order can be challenged by the person if he is aggrieved by the said order under this Section.  As against this, Learned Counsel Mr.Warunjikar submitted that word “order” which is appearing in Section 27-A contemplates a final order passed in a proceeding under Section 27.  He submitted that the orders which are interim, interlocutory or procedural and especially which does not affect the rights of the party in any way are not appealable.  He submitted that right of appeal on facts and law is a substantive right provided under Section 27-A and that cannot be invoked for challenging the interim, interlocutory or procedural orders.

On considering the bare submissions of the Learned Counsels, we find that it is not disputed between the parties that as against the final order passed under Section 27, appeal under Section 27-A will lie on facts and law.  Whole controversy centers around as to whether interim, interlocutory and or procedural orders like the impugned order in the present case whether can be challenged under Section 27-A.

Learned Counsel Mr.Warunjikar invited out attention to 2004(4) Mh.L.J. Page-1006 in the matter of Central Bank of India V/s. Kurian Babu & Ors.  In this case, Section 20(1) of the Recovery of Debts Due to Banks and Financial Institutions Act was considered by the Bombay High Court.  Said section provided “Appeal to the Appellate Tribunal (1) Same as provided in sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter”.  In this case, original papers were lost by the Bank and therefore, the Bank wanted to produce secondary evidence and therefore, application was submitted.  Said application was allowed.  As against that appeal under Section 20 was preferred, wherein it has been observed relying upon the Supreme Court’s judgement that “the rights and liabilities of the parties would be normally decided by the final order.  Very rarely the interim, interlocutory orders on procedural matter would affect the rights of the parties.  The course of litigation should normally proceed unhampered.  If at every stage, appellate Court has to entertain an appeal, there cannot be a speedy culmination of the litigation at all.  It is with a view to expedite the trial and conclusion of litigation before the original authority or Court, the Supreme Court has limited the scope of the appellate jurisdiction in the manner stated in the Central Bank’s case and therefore, we have no hesitation to hold that purely procedural orders which do not affect the substantive right of the parties are not appealable under Section 20(1) of the Act and thus, holding that appeal is not tenable, it was disposed of.” 

We have also looked into the case of The Central Bank of India V/s. Gokal Chand, AIR 1967 Supreme Court page-799.  It was a case dealing with Section 38(1) of Delhi Rent Control Act which provided an appeal for every order of the Controller.  The Supreme Court held that words “every order” is not so wide, as to include interlocutory orders which are merely procedural which do not affect the liability of the parties.  The Apex Court has observed, “The object of Section 38(1) is to give a right of appeal to the party aggrieved by some order which affects his right or liability.  In the context of Section 38(1), the words “every order of the Controller made under the Act” though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties.  In a pending proceeding, the Collector may pass many interlocutory orders under Sections 36 & 37, such as orders regarding the summoning of witnesses, discovery, Production and inspection of documents, issue of a commission for examination for witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or relevancy of a question.  All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties.  The Legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders.  It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding.  Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Collector under the Act and it is subject to appeal under Section 38(1) provided it affects the right or liability of any party.”

Thus, on reading these cases, what we find that section which provides appeal against the orders passed by the authority even though uses sweeping language that “every order of the Controller made under this Act”, the Supreme Court restricted meaning of this word to the final orders and have not permitted the appeal as against the interlocutory or the procedural orders.  What is to be kept in mind that the course of litigation should normally proceed unhampered and if at every stage the appellate Court has to entertain an appeal, there cannot be a speedy culmination of the litigation at all.  It is with a view to expedite the trial and conclusion of litigation before the original authority or Court.

In reply to this, Learned Counsel Mr.Patwardhan has produced on record an order passed by the National Consumer Disputes Redressal Commission in Revision Petition No.3223/2005 in the matter of Shivaji Tatyaba Sanap & Anr. V/s. Jijabai S. Sagle & Anr. It was a Revision Petition before the National Commission and it appears that the amount as directed by the party was deposited and therefore, case was disposed of.  Only observation which we get from the said order is, “we make it clear that we do not approve the view expressed by the State Commission with regard to the interpretation of Section 27-A of Consumer Protection Act, 1986.”  However, that is the passing reference.  The National Commission has not dealt with the reasons as to what were the observations of the State Commission and how those were incorrect.  This observation cannot be said to be ratio decidendi.  It is also not clear whether the proceeding has arising from the interlocutory order or the final order and therefore, said judgement is not relevant to the facts.

Another judgement which is produced on record is of the Supreme Court in the matter of Jijabai S. Sagle & Anr. V/s. Shivaji Tatyaba Sanap & Anr.  It also shows that the earlier judgement was taken by the respondent in the Supreme Court and the Supreme Court has set aside the order of the National Commission referred to above having found that the District Consumer Forum had found prima-facie the case under Section 27 of the Consumer Protection Act, 1986 for taking action against the respondents.  Thus, what we find that the order of District Consumer Forum wherein the District Consumer Forum has found that prima-facie the opponent is to be charged under Section 27, the Supreme Court has set aside the order of the National Commission and directed trial of the case.  It is to be noted that point as to whether appeal will lie as against the interlocutory orders has not been considered, but however, the Supreme Court has found that the order passed by the District Consumer Forum expressing satisfaction to frame charge under Section 27 was not properly set aside by the National Commission.  The order of the National Commission has been set aside by the Supreme Court.  Advocate Mr.Patwardhan has also relied upon the order passed in Misc. Application Nos.15&16 of 2004 in Complaint Nos.435 & 434 of 2002 by the State Commission, Maharashtra.  This was the case arising out of proceeding under Section 27.  This was the case dealing with appointment of Receiver and is not relevant for our consideration. 

Thus, on consideration of the cases filed by the appellant/org. opponent, what we find is that the opponent could not point out any case supporting interpretation as advanced by Learned Counsel.  On the contrary, cases which have been cited by the Learned Counsel Mr.Warunjikar are to the point and therefore, we hold that even under Section 27-A, only final orders which are passed either against the applicant or as against the opponent can be challenged.  Any orders which are procedural, interim or interlocutory cannot be challenged.  On the contrary, Section 27 is a remedy of a person to get the orders executed and therefore, course of execution shall proceed in unhampered manner.  In such proceeding, appellant is always interested for protraction and prolonging the proceeding under Section 27.  That means he will not obey the orders of the District Consumer Forum and will not allow the District Consumer Forum to proceed with execution by filing appeal under Section 27-A to appellate authority.  The present case is an example of such approach.  What we find that after disposal of third party application of Mr.Brij Bangal, District Consumer Forum found that appellant/org. opponent is absent, therefore, bailable warrant of `50,000/- was issued with a direction dated 01/10/2008 to the appellant/opponent that he shall remain present before the District Consumer Forum on 15/10/2008.  However, said warrant was not executed by the Police authority, but when explanation was called from the Police Officer and another warrant was issued on 16/10/2008, opponent/appellant appeared on 24/10/2008 before the District Consumer Forum for cancellation of warrant and District Consumer Forum cancelled the said warrant on furnishing PR Bond of `10,000/-.  After executing said bond, again appellant/opponent remained absent on 15/11/2008 and therefore, non-bailable warrant was issued as against appellant/opponent.  Not only that but PR Bond which was executed earlier for `10,000/- was forfeited.  However, said warrant dated 15/11/2008 could not be executed because opponent gave an application on 20/11/2008 praying for cancellation of warrant of arrest.  Then, he made a show of depositing certain amount and readiness to deliver possession of the alternate flat.  Then, he has taken a summersault and gave another application praying the District Consumer Forum to direct the complainant to follow the procedure for getting possession of the property though he was then aware that the Receiver appointed has failed to take possession of the property because it is in possession of Mr.Brij Bangal.  Application for cancellation of non-bailable warrant was rejected on 26/11/2008.  Said warrant was also challenged by the opponent/appellant by filing Appeal No.1502/2008 along with Misc. Application No.2117/2008 on 02/12/2008 and the appellant/opponent obtained stay order from the State Commission.  It appears that the appeal was disposed of by the State Commission and therefore, matter appeared before the District Consumer Forum on 12/05/2009 and when it was found that the appellant is absent on 02/06/2009 again a bailable warrant was issued.  These facts on record shows that on several times, appellant/opponent has remained absent and at every time, he made an application before the District Consumer Forum and/or when the District Consumer Forum rejected the application, he preferred an appeal and obtained stay order.  Except for obeying order of the District Consumer Forum, every sort of attempt has been made by the appellant/opponent to see that the proceeding is protracted and prolonged as a result of his non-participation and/or making a sham and false assurances to the District Consumer Forum.  The stream of justice shall be unhampered.  However, by the conduct of the opponent/appellant, it is crystal clear that he has not only tried to affect said stream of justice, but has also made mockery of it and the facts which are narrated in the earlier part of the judgement, are self-explanatory in this respect.  Consumer is expected to get the decision as early as possible within 90 days and thereafter, execution of the order and therefore, whole Sections 25 & 27 have been modified by the Legislature.  What we find that if appeal under Section 27-A against such types of interlocutory, interim and procedural orders like issuance of bailable warrant or non-bailable warrant is allowed, the whole purpose and object of the law, namely to provide a speedy, expeditious and cheaper remedy to the consumer shall be frustrated.  Therefore, only way to curtail such types of unwanted litigations which gives lever to unscrupulous opponent to protract and prolong litigation as in the present case, is to hold that only as against the final orders passed under Section 27, appeal shall lie under Section 27-A.  We hold that the appeal shall not lie as against the interim, interlocutory and/or procedural orders passed in a proceeding under Section 27 by invoking powers under Section 27-A.  There may be some interim orders passed by Consumer Fora which affect the rights of parties, but such orders can be challenged by invoking Revisional jurisdiction.  But, it made clear that orders issuing bailable or non-bailable warrants are not the orders affecting rights of parties but these orders are passed for securing presence of accused/opponent in proceeding under Section 27.  Therefore, as against such orders even Revision under Section 17(1)(b) of Consumer Protection Act, 1986 would not lie.  Thus, we hold that the preliminary objection which was raised in respect of tenability of Appeal No.1190/2009 is valid one and therefore, the Appeal No.1190/2009 is not tenable in law.

          Thus, to sum up –

          (a)      Proceedings under Sections 25 and Section 27 are distinct and separate proceeding under the Consumer Protection Act, 1986.  Proceeding under Section 25 is a civil proceeding while proceeding under Section 27 is a criminal proceeding;

          (b)     Proceeding under Section 25(1)&(2) is applicable in respect of execution of the interim orders passed by the Consumer Fora.  However, Section 25(1)&(2) shall not be applicable for an execution of final order passed in a complaint;

          (c)     Proceeding under Section 25(3) shall be filed only in respect of recovery of the amounts as per orders of the Consumer Fora and if said due amounts are not paid by either of the party, who is under obligation to make said payment as per directions of the Consumer Fora;

          (d)     Proceeding under Section 25(3), the Consumer Fora shall on ascertainment of the facts that due amount as directed by the Consumer Fora has not been paid, shall issue a certificate of recovery to the Collector to recover the amount as arrears of land revenue;

          (e)      Whenever the final order of which applicant is seeking execution, is otherwise than for recovery of the amount, namely, for delivery of possession of movable or immovable property, the application under Section 25(3) for execution of such orders is not tenable.  In an application under Section 25(3), District Consumer Forums and for that purpose, Consumer Fora do not have powers to attach the property and/or to appoint a Receiver and to deliver possession of the property as had happened in the present case. 

          (f)      Section 25(2) permits the Consumer Fora to sell away the attached property after three months if breach of interim order continues, but Act, Rules and Regulations have not provided any procedure for sale of such property and therefore, the Consumer Fora can evolve its own procedure for sale of such property while exercising powers under Section 25(2).  However, it is to be kept in mind that the Consumer Fora shall evolve such a procedure which is just and based on principles of natural justice.  Said procedure shall not be fanciful, arbitrary, but shall be a realistic one so as to deliver a justice to the party.  This direction is provided to the Consumer Fora till the Central Government or the State Government or the National Commission makes rules and/or regulations providing the procedure of an attachment & sale of property under Section 25(1)&(2);

          (g)     After issuance of certificate under Section 25(3) if it is found by the Collector that along with certificate, information about movable and immovable property has not been sent and/or given by the person holding certificate, the Collector shall not return the certificate to the Consumer Fora.  The Collector shall try to find out from his record the properties of the opponent and shall proceed to recover the amount.  In case of movable property, the Collector can attach the property which is shown by the certificate holder and for such purpose the Collector may take assistance of the certificate holder.  In respect of immovable property, the Collector shall make an endeavour to find out with the aid of his staff the properties of the person against whom the recovery is to be effected.  The Collector may also seek assistance and give directions to the certificate holder to give information about the properties of the person from whom the amount has to be recovered as arrears of land revenue.  But, on this count, the Collector shall not refuse to execute the certificate and/or shall not return the certificate to the Consumer Fora.  The Collector shall keep in mind that the sale of movable and immovable property is one of the way to recover the amount, but there is also third way available under the law, namely, to keep the person in the civil prison for recovery of the amount.  Therefore, act on the part of the Collector to return the certificate because particulars of the properties are not given is not a legal and proper;

          (h)     It is clarified that it will not be open for the Collector and the Revenue Officers that after issuance of certificate, Consumer Fora has became functious officio.  It has to be kept in mind that the certificate has been issued by the Consumer Fora and those are the judicial proceedings as provided in Section 13(5) and therefore, the Collector is under obligation to follow directions for execution of certificate as arrears of land revenue.  It is clarified that the Consumer Fora for that purpose have a supervisory control over the Collector and the Revenue Officers.  If it is found that the Collector has unduly delayed the execution of certificate and/or wrongly refused to execute the certificate and/or has avoided to execute the certificate, the Consumer Fora can exercise supervisory jurisdiction over the Collector and can invoke powers under Section 195 of Code of Criminal Procedure read with 187 & 188 of Indian Penal Code, so that certificate issued by the Consumer Fora can be executed;

          (i)      While executing the certificate, the Collector shall not recover the administrative cost of the recovery of said amount from the certificate holder or the complainant.  In fact, it is the opponent who had constrained and forced the complainant to file legal proceeding and therefore, cost should be recovered from whom the amount is to be recovered.  Therefore, the Collector shall henceforth while executing the certificate issued under Section 25(3) shall recover the amount of administrative costs of the recovery of the amount of the certificate from other side and shall not recover said cost from the certificate holder and shall not deduct said cost from the recovered amount which the complainant or certificate holder is entitled as per the directions of the Consumer Fora;

          (j)      While dealing with proceeding under Sections 25 & 27, procedure as provided under Sections 13 & 14 will not be applicable;

          (k)     Proceeding under Section 27 is a criminal proceeding and the said proceeding is required to be dealt with in accordance with the provisions laid down in Section 27 only.  The procedure is a summery criminal procedure to be followed in case of offence and therefore, Chapter XX & XXI which dealt with the procedure of the summery trial of the criminal case will be and shall be applicable in a proceeding under Section 27;

          (l)      It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order XXI of Code of Civil Procedure.  After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order XXI of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statute Book dated 15/03/2003 and therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25;

          (m)    Under Section 27 District Consumer Forum in a composite way is constituted as a Judicial Magistrate of First Class and conferred with the powers of the Judicial Magistrate of First Class and this status and the powers have been given by Section 27(2) by applying non-obstante clause and it is clarified that said non-obstante clause is only applicable in sub-Section (2) of Section 27 by which the Consumer Fora have been declared as a Judicial Magistrate of First Class with conferment of powers as such Judicial Magistrate of First Class.  Had the said non-obstante clause been not there, it would have been necessary for the Consumer Fora to get a status of Judicial Magistrate of First Class and conferment of the powers under Section 11 of Code of Criminal Procedure.  However, in order to avoid such difficulties, the Legislature has directly conferred the powers & status of the Judicial Magistrate of First Class directly by the legislation and for said limited purpose, non-obstante clause has been introduced in Section (2) of Section 27.

          It is to be clarified that offence under Section 27(1) of the Act has been provided under the Special Act, namely, Consumer Protection Act, 1986.  So far as trial is concerned, sub-Section (3) has specifically provided for summary procedure of trial and we held that the procedure as provided under Chapter XX & XXI of Code of Criminal Procedure is required to be followed.  We also clarify that in view of provisions of Section 4, 5 & 6 of Code of Criminal Procedure read with provisions of Consumer Protection Act, 1986 it follows that except and for the purpose, the specific procedure which has been provided under the Consumer Protection Act, 1986 rest of the procedure as may be applicable from the Code of Criminal Procedure shall be followed by the Consumer Fora while dealing with the complaint or application under Section 27 i.e. while sitting and dealing with the application under Section 27 as a Judicial Magistrate of First Class and from that angle, we have analysed the procedure in the earlier part of the judgement.

The third party application may be permissible in a proceeding under Section 25(1)&(2) as discussed above.  However, third party proceeding is not applicable in case of proceeding under Section 25(3) before the Consumer Fora.  That may be possible while the Collector has taken steps for recovery of the amount as arrears of land revenue under Section 210 of the Maharashtra Land Revenue Code, 1966. So far as proceeding under Section 27 is concerned, there would not be a third party proceeding, since this is a criminal proceeding where the opponent who is a person allegedly committed an offence as provided under Section 27(1).  This a question is to be considered by the Consumer Fora sitting as Judicial Magistrate of First Class composite.

(n)     There may be multiple execution applications either under Section 25 or under Section 27 depending upon the facts of the case; and

(o)     Appeal shall not lie as against the interim, interlocutory and/or procedural orders passed in a proceeding under Section 27 by invoking powers under Section 27-A.

                             -: ORDER :-

A)      Appeal no.1190/2009 is hereby dismissed being not tenable under section 27-A of Consumer Protection Act, 1986. However, since the presence of appellant is secured before the District Consumer Disputes Redressal Forum, in view of the order dated 17/8/2010, the District Consumer Disputes Redressal Forum is hereby directed to proceed with the hearing of the application under section 27, so far as it relates to non delivery of possession of the flat no.B-101 of Sharda Gram, Mathurdas Road, Kandivali(W), Mumbai 400 068 and in respect of non payment of the amount of `15,000/- plus `3000/- which is to be paid by the appellant to the respondent for mental harassment and inconvenience and towards the cost of the litigation in complaint.  The application filed by complainant in proceeding under Section 25 in the present case be registered separately.

B)      Liberty to file a separate application under section 27 of Consumer Protection Act, 1986, if desired by the complainant and in case after the delivery of the possession, opponent/appellant continues to non comply the order of the District Consumer Disputes Redressal Forum in respect of rental of `142.25ps. w.e.f.07/4/2005 till possession of the flat and, in respect of interest to be recovered @ 9% p.a. on `12 lakhs w.e.f. 07/04/2005 till the date of possession of the flat and in respect of interest to be paid @ 9% p.a. on `90,620/- w.e.f.07/5/2005 till the date of possession.

          The Suo Motu Revision Petition No.35/2010 is hereby allowed on the following terms:-

C)      The application filed under section 25(3) of Consumer Protection Act, 1986 is presently maintainable in respect of amount of `15,000/- to be recovered as an amount of mental harassment and inconvenience and cost of `3000/- towards the litigation cost and the District Consumer Disputes Redressal Forum is hereby directed to issue a certificate under section 25(3) in respect of these amounts, if it is found that the said amount has not been paid by ^{* to} the complainant till today.  If it is found that the amount has been paid by ^{* to} the complainant during the pendency of this proceeding, then the District Consumer Disputes Redressal Forum shall dispose of the said application to that part also.

* See note below.

D)    So far as amounts to be recovered by way of any rental at the rate of `142.25ps from 07/4/2005 till the date of possession of flat and interest to be recovered @ 9% p.a. on `12 lakhs and `90,620/- w.e.f.07/5/2005 till the date of possession is concerned, the application under section 25(3) is a premature application and, therefore, accordingly stands disposed of.  However, liberty is hereby given to the complainant to file a separate application, if so desire by him under section 25(3) of Consumer Protection Act, 1986, after complainant gets possession of the flat in question.

E)   The application under section 25(3) so far as seeking possession of flat in question is concerned is found to be not tenable and to that extent it stands disposed of.

F)   The orders which were passed by the District Consumer Disputes Redressal Forum during the pendency of the application under section 25 of Consumer Protection Act, 1986 effecting an attachment and appointing a receiver are hereby quashed and set aside and declared as non est in law.

G)   By way of last opportunity, the opponent is hereby directed to deliver possession of flat no. B-101 of Sharda Gram, Mathurdas Road, Kandivali(W), Mumbai 400 068 to the complainant within a period of 15 days after receipt of free copy of this order and, thereafter, if it is found that the possession has not been delivered, the District Consumer Disputes Redressal Forum shall proceed in the matter expeditiously without any delay on day to day basis by following the procedure as laid down in this order.

H)      This order shall be circulated to all the District Consumer Disputes Redressal Forums in State of Maharashtra and also to Benches of State Consumer Disputes Redressal Commission.  It shall also be circulated to all the Collectors in the State of Maharashtra.

 Pronounced

Dated 27^th September 2010

[Hon'ble Mr.Justice S.B.Mhase]

PRESIDENT

[Hon'ble Mr. S.R. Khanzode]

Judicial Member

[Hon'ble Mr. Dhanraj Khamatkar]

Member

dd.