DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
M.A. 224/2018
E.A. NO- 136/2013
Arising out of the C.C No.- 101/2012
Date of Filing: Date of Disposal:
31.05.2013 10.08.2018
Dhr/s:- 1. Smt. Pramila Rakshit,
W/o. Sri Ranjan Rakshit
238/1, Gopal Lal Thakur Rd
P.O. Baranagar, Kol-36
P.S. Baranagar, 24 Pgs(N)
=Vs.=
Jdr/s:- 1. M/s. Elegant Construction,
a proprietorship firm
having its office at 32/B,
B.T. Road, P.S. Cossipore,
Kol-2, North 24 Parganas.
2. (i) Smt. Priyanka Sen
W/o Late Swapan Sen
42/B, B.T Road,
P.S- Cossipore,
Kolkata- 7000021
North 24 Parganas
2. (ii) Projukta Sen
D/o Late Swapan Sen
42/B, B.T Road,
P.S- Cossipore,
Kolkata- 7000021
North 24 Parganas
3. Sri Ram Pada Das,
S/o. Late Kali Pada Das,
238/1,GopalLal Thakur Rd
P.S. Baranagar, Kol-36,
Dist- North 24 Pgs.
4. (i) Smt Chobi Das,
W/o Lt Anand Mahan Das,
4. (ii) Sri Ashis Das,
S/o Lt Anand Mahan Das,
4. (iii) Smt. Mithu Das(Biswas),
4. (iv) Smt. Mon Das(Laha),
104/14, Gopal Lal Thakur Road,
P.S- Baranagar,
Kolkata – 700036. Cont……………2
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P R E S E N T :- Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ………………………Member.
ORDER No- 32
This Order is arising out of the MA being no- 224/2018 filed by the Jdrs 2(i) and (ii) for exemption from making payment of punitive damage as per the order under execution.
In the application the said Jdrs have stated that for the first time they came to know about this execution proceedings from their neighbors when Police Authority came to execute W/A against her and her minor daughter. Subsequently on 17.12.2015 they have appeared before this Ld. Forum surrendering themselves and accordingly W/A was recalled. Thereafter the Jdrs applied for certified copies of the proceedings and collected other documents from where they came to know about the CC 101/2012 as well as EA 136/2013 initiated by the complainant-Dhr. It was initiated against M/s Elegant Construction which was led by Late Swapan Sen, since deceased being the husband and the father of the instant Jdrs. the Original Decree was passed by the Trial Forum on 26.03.2013 against the Jdr 1 and 2 being the developer and its proprietor of the said business concern, but the instant Jdrs were not connected with the said concerned at any point of time. After sad demise of Swapan Sen the instant Jdrs have fallen under a very critical financial condition and at present they use to pass their days and life at the mercy of the father of the Jdr 2(i). In the order under execution the Ld. Forum was pleased to pass an order that in the event of non-compliance of any portion of the order by the OPs within a period of one month from the date of the order, the defaulting OP shall have to pay a sum of Rs. 400/- per day till its realization as punitive damages, which amount shall be deposited by the OPs-Jdrs in the SCWF. In the Execution Application the names of the instant Jdrs was incorporated/ substituted due to death of the original Jdr. As no order was passed against the instant substituted Jdrs, direction cannot be given to this Jdr for making payment of the punitive damage as per the Final Order. Accordingly prayer is made by the Jdrs for allowing this application, otherwise they will be seriously prejudiced. Prayer has been made by the Jdrs to drop the present Execution Application as the decree has already been satisfied on full satisfaction in respect of the Dhr.
Upon receipt of the copy of this application the Dhr has raised vehement objection stating that the prayer of the Jdr 2(i) and (ii) shall not be allowed as the executing Forum cannot go behind the Decree as the order for making payment of the punitive damage has not been challenged by the said Jdrs before the higher Forum and as the same is remained unaltered, hence the Jdr 2(i) and (ii) are liable to pay the punitive damage as per direction made in the Final Order dt. 26.03.2013. According to the other parties the instant application is liable to be dismissed.
Cont………….......2
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Upon considering the facts as stated in the application filed by the Jdr 2(i) and (ii) we are of the view that being the Executing Forum we cannot go beyond the decree, it is the duty of the Executing Forum to execute the Decree as passed by the Trial Forum. Executing Forum is not empowered either to incorporate or delete any portion from the Decree, if the Decree is not obtained by making fraud practice. As in the case in hand there is no allegation made by the Jdr 2(i) and (ii) that the Decree was obtained by the Dhr by practicing fraud, hence questioned does not arise to travel beyond the Final Order under execution. Moreover the Judgment passed by the Hon’ble Supreme Court in the case of Rajeev Hitendra (supra), wherein Their Lordships have held that the District Forum is not empowered either to recall or review its own order as the statue has not given such power to the District Forum. In view of the abovementioned reportable Judgment as well as the Law of This Land as we do not have any power to review our own order, hence we cannot alter the Final Order passed by this Ld. Forum, which is under execution.
In the light of the abovementioned observation hence it is order that the MA 224/2018 is hereby dismissed on contest. There is no order as to costs.
Fix 14.01.2019 for compliance of the remaining order by the Jdrs.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member President
Dictated & Corrected by
