Chandigarh

StateCommission

A/170/2022

SAVITA JERATH - Complainant(s)

Versus

M/S HARMIONY HONDA - Opp.Party(s)

AASHUTOSH JERATH

30 Jun 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Appeal No	:	A/170/2022
Date  of  Institution	:	12/12/2022
Date   of   Decision	:	30/06/2023

 

 

 

 

 

Savita Jerath, resident of H.No.2200, Sector 15-C, Chandigarh.

…. Appellant

 

V E R S U S

 

 

1.   M/s Harmony Honda, Joshi Automobiles Pvt. Ltd., Plot No.67, Industrial Area, Phase-II, Chandigarh, through Sh.Jaswinder Singh, General Manager (Sales).

 

2.   M/s Honda Siel Cars India Limited, Plot No.A-1, Sector 40/41, Surajpur Kasna Road, Greater Noida Industrial Development Area (NOIDA), District Gautam Budh Nagar (U.P).

…… Respondents  

 

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT

:

Sh. Aashutosh Jerath, Advocate for the Appellant. Sh. Rajesh Verma, Advocate for Respondent No.1. Sh. Varun Bhardwaj, Advocate for Respondent No.2.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

This appeal is directed against the order dated 18.10.2022, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it dismissed the Execution Application bearing no. EA/146/2019, in the following terms:-

     “Counsel for complainant has stated at bar that vehicle in question has not been handed over to the OP/JD No.1 in pursuant to the order dated 11.10.2022 passed by this Commission.

     Vide his separate statement, Sh.Jaswinder Singh, Vice President of OP/JD No.1 has stated that the complainant has not handed over the vehicle in question in the premises of OP/JD No.1 on 15.10.2022 in between 11.00 AM to 2.00 PM and even till today in pursuance to the order/directions given by District Commission-I, UT Chandigarh vide order dated 11.10.2022. 

     In view of the statement of OP/JD No.1 and also that complainant has not complied with the directions issued by this Commission vide order dated 11.10.2022, we are of the view that complainant herself is not interested to get the order passed by this Commission executed and there is no other option to us except to dismiss the execution application. According, the execution application is dismissed.”

 

2.      Concisely put, the Appellant/Complainant purchased Honda City GXI MR car (Regn. No. CH-04-C-3945) from M/s Harmony Honda Joshi Automobiles Pvt. Ltd. (Respondent No.1) for a sum of ₹7,23,500/-. The vehicle carried a comprehensive warranty cover initially for a period of two years, but the same was covered under extended warranty cover for four years valid upto 29.02.2012. The vehicle developed a serious snag during the first year of its use and a manufacturing defect came to light when the vehicle stopped in the middle of the road on 03.10.2009. The matter was reported to both the Respondents, but they took no adequate steps as laid down in the warranty cover. Aggrieved by the same, the Appellant approached the Ld. Lower Commission with Consumer Complaint bearing No. CC/282/2010, which was allowed vide order dated 07.03.2012. The operative part of the said order reads as thus:-

 

“The OPs are jointly & severally directed to replace the entire engine of the car in question, without charging anything from the Complainant on account of replacement, repair and labour charges etc. They are also directed to pay a sum of Rs.50,000/- to the Complainant as compensation for causing him great mental agony and physical harassment, apart from Rs.15,000/- as litigation cost.

 

This order be complied with by the OPs, within one month, from the date of receipt of its copy, failing which they would be liable to pay the above awarded amount, along with interest @12% p.a. from the date of filing of the present Complaint i.e. 07.10.2010, till the amount is actually paid to the Complainant, besides paying the litigation cost of Rs.15,000/-.”

 

3.      The Respondents No.1 & 2 assailed the aforesaid order dated 07.03.2012 before this Commission by way of Appeal No. 137 of 2012 and Appeal No.150 of 2012, which were dismissed by this Commission vide order dated 03.09.2012. Both the Respondents then approached the Hon’ble National Consumer Disputes Redressal Commission and filed Revision Petition No.4614 of 2012 and No. 4615 of 2012. Ultimately, vide order dated 16.05.2018, the Hon’ble National Consumer Disputes Redressal Commission rejected the appeals of both the Opposite Parties. It is thus clear that the order dated 07.03.2012 passed by the Ld. Lower Commission has attained its finality.

 

4.      The Respondents have made partial compliance of the order dated 07.03.2012 passed by the Ld. Lower Commission so far as the compensation and litigation expenses are concerned. However, when the remaining portion of the said order dated 07.03.2012 with regard to replacement of the engine was not complied with and the same was hanging fire since 2018, the Appellant filed Execution Application bearing no. EA/146/2019 before the Ld. Lower Commission. However, the Ld. Lower Commission dismissed the said Execution Application of the Appellant, as noticed in the opening para of this order.     

 

5.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Complainant.

 

6.      We have Learned Counsel  for the Parties and have also gone through the record of the case, with utmost care and circumspection.

 

7.      The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

8.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be allowed for the reasons to be recorded hereinafter.

 

9.      The execution of decrees is the last leg of the arduous journey that a litigant is put through to obtain the desired relief from the court. The instant appeal portrayed the troubles of the Appellant/Decree Holder in not being able to enjoy the fruits of litigation, defeating the very purpose of the rigorous litigation that the parties engaged in to bring their disputes to closure.

 

10.         A “decree” is defined in Section 2(2) of the Code of Civil Procedure to mean: “2. (2) … the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and it may be either preliminary or final.” It may partly be preliminary and partly be final. The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order. The circumstances under which an order had been made would also be relevant”.

 

11.      We have given thought to the matter and the submissions of the learned counsel and have no doubt whatsoever that the dragging of the proceedings for more than one decade has been a grave injustice to the Appellant/Decree Holder, who have been deprived of the enjoyment of the car despite having paid the full price long years back. It has been observed that various objections were filed before the executing court to prevent the Appellant/Decree Holder from having any meaningful relief after what was already a long-fought litigation battle. 

 

12.      When the order under execution was assailed by the Respondent/Judgment Debtors before this Commission on 20.04.2012, it was incumbent upon them to keep one engine in their stocks for facilitating making compliance of the decreetal order in case the same stands upheld by this Commission. However, that was not done. Further, while assailing the concurrent finding dated 03.09.2012 given by this Commission before the Hon’ble National Consumer Disputes Redressal Commission, again no such exercise was undertaken. In other words, the Respondents/ Judgment Debtors would have saved the day even at that time by keeping one engine in their stocks as it was not  new demand, but flown from the original order of the Ld. Lower Commission. However, the Respondents/ Judgment Debtors did not do so. Incidentally, it was not the case of the Respondents/Judgment Debtors that the plea of assembled engine from 100 parts due non-availability of the engine or otherwise as the case may be was taken during the appropriate proceedings upto the Hon’ble National Consumer Disputes Redressal Commission. Merely because the Respondents/Judgment Debtors are big corporate house does not give it a licence to take a Appellant’s right for a ride. To our mind, the practicable step would have been to immediately comply with the decreetal order which did not happen in the present matter. On the contrary, the Appellant/Decree Holder was made to run from pillar to post and ultimately, when the execution proceedings were filed before the Ld. Lower Commission (Ld. Executing Court) payment of compensation along with interest and litigation cost was made to the Appellant/ Decree Holder, but instead of complying with the remaining order i.e. replacement of entire engine of the car in question, the Respondents/ Judgment Debtors offered to assemble the engine from 100 parts just to frustrate the decree and to defeat the cause of the Appellant/ Decree Holder. This conduct of the Respondents/ Judgment Debtors is not condonable at all, in as much as, this amounts to failure of realisation of the fruits of the decree and relief which the party sought from the court despite there being a decision in its favour. The execution proceedings which are supposed to be a handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools that are easily misused to obstruct justice.

 

13.      Further, the Hon'ble Supreme Court in catena of judgments, settled the legal position by holding that a court executing a decree cannot go beyond the decree and cannot entertain any objection that the decree was incorrect in law or on facts; Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties; The Executing Court cannot go beyond the Decree, unless it is shown that it is passed by the Court lacks jurisdiction which would make it a nullity; It is not for the Executing Court to decide whether the Decree passed is legal or illegal or whether it is erroneous or not; Since the decree is of a Court with jurisdiction, the executing Court is bound to execute the decree as it stands.

 

14.      In the case in hand, the Ld. Executing Court went beyond the decree by enlarging its scope, through an analysis of the pleadings, which it was not empowered to do, as held by several judgments of the Hon’ble Apex Court, such as Meenakshi Saxena v. ECGC Ltd., (2018) 7 SCC 479.  It was on record that the Judgment Debtors offered to fit assembled engine, but the same was not affirmed by the Decree Holder in writing or otherwise. Learned Counsel for the Decree Holder submitted that there was never any agreement on the fitment of assembled engine instead of new one as per the decree and the situation created in this case was an afterthought by the Judgment Debtors meant to escape and evade the decree drawn. On the other hand, Learned Counsel for the Judgment Debtors urged that that impugned judgment did not warrant any interference.

 

15.      The Ld. Lower Commission, in the absence of any consent by the Decree Holder qua the assembled engine and proceeded to go beyond the decree by passing the impugned order is clearly an exercise in overreach. The Hon’ble Apex Court has time and again cautioned against the Execution Court adopting such an approach. In Topanmal Chhotamal v. Kundomal Gangaram, AIR 1960 SC 388 a three-judge bench held as follows: “It is a well-settled principle that a Court executing a decree cannot go behind the decree: it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit”. Yet again, in Meenakshi Saxena (supra) it was reiterated that: “The whole purpose of execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree.”

 

16.      As is commonly known, the stream cannot rise above its source. The reason underlining the above rule is that, although a decree may not be according to law, it is binding and conclusive as between the parties to the suit, unless it is set aside in appeal or revision. It is for the same reason that, the Court executing a decree cannot alter, vary or add to the terms of the decree even with the consent of the parties. The impugned order passed by the Ld. Executing Court clearly altered the terms of the decree, which is per se erroneous, in as much as, Ld. Executing Court failed to appreciate the fact that Respondents/ Judgment Debtors sought to assemble the engine from 100 parts which was primarily the reason on account of which Appellant/ Decree Holder could not drop the vehicle in the workshop of M/s Harmony Honda. The Ld. Lower Commission has not looked into the facts leading up to the passing of the decree in a holistic manner. This elucidation of the law is unexceptionable.  It is undeniable that an Executing Court can construe a decree if it is ambiguous. However, as in the facts of the case herein, this cannot result in additions (to fitment of assembled engine from 100 parts) which were not agreed upon by the Decree Holder, since the original decree was for replacement of the engine. It appears that the Ld. Lower Commission has interpreted the Decree Holder’s silence (manifest in their not letting the assembled engine fitted in her vehicle) as acquiescence to the inclusion of the assembled engine, which, is although worthy of adverse inference, cannot be the reason to travel beyond the decree. At any rate, the Ld. Lower Commission being entrusted exclusively with the administration of justice is expected to do aid to the execution of decree and cannot go beyond the decree  between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts or otherwise. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. Needless to mention here that the decreetal order has attained its finality upto the Hon’ble National Consumer Disputes Redressal Commission.

 

17.      We must note in the end that Order XXI of the said Code is exhaustive and in the nature of a complete Code as to how the execution proceedings should take place. We may add here that the executing court has power to mould the relief granted to the plaintiff in accordance with the changed circumstances. During the progress and passage of proceeding from court to court if subsequent events occur which if noticed would non suit the plaintiff, the court has to examine and evaluate the same and mould the decree accordingly, but cannot prevent the Decree Holder from realization of the fruits of the decree by dismissing the execution application. It is often said in our judicial set-up that another legal battle, more prolonged, starts in execution proceedings defeating the right of the party which has succeeded in establishing its claim in a proceeding. This is exactly what has happened in the present case. The various stages of Order XXI of the said Code when violated cannot give right to some extra indulgence merely because the Respondent is a big company. There cannot be a licence to prolong the litigation ad infinitum.

 

18.      To conclude, based on afore discussion, the appeal is allowed. The impugned order is set aside. There will be no order as to costs. The execution application is remanded back to the Ld. Lower Commission, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed, and decide the same, expeditiously, in accordance with law as per the original decree which has attained finality upto the Hon’ble NCDRC. 

 

19.      The Parties are directed to appear, before Ld. Lower Commission on 24.07.2023, at 10.30 A.M., for further proceedings. The Ld. Lower Commission record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed.

 

20.      The pending application(s), if any, stand disposed off as having become infructuous.

 

21.      Certified copies of this order, be sent to the parties, free of charge.

 

22.      The file be consigned to the Record Room, after due completion.

Pronounced

30^th June, 2023

               Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”