Sri Subhra Sankar Bhatta, Presiding Member
The instant appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) has been preferred at the instance of the Appellant/DHr viz. Gunjan Shah assailing the impugned order dated 05.04.2017 vide order no. 53 passed by the District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat in connection with Execution Case no. 03/2012 arising out of complaint case no. 147/2011 whereby Ld. District Consumer Disputes Redressal Commission was pleased to pass the following order:
“Heard both sides. Perused the petition and objection thereto.
The prayer for recalling is rejected as we have no power to recall our own order.
The exact computer has not been reportedly returned.
The JDr is directed to return the computer on proper receipt and report us.
The objection is sustained.
Hence for ends of justice we would request both parties to amicably settle this long standing dispute.
To 11.07.2017 for compliance.”
Being aggrieved by and dissatisfied with the above order of the Ld. Executing Court below Gunjan Shah the Decree Holder/Complainant as Appellant has preferred the present appeal on various grounds as highlighted in the memorandum of appeal. It has been contended that the Ld. Executing Court has no jurisdiction to go beyond the judgment and order passed in the original complaint case; that the Ld. Commission below erred both in law and facts by not evaluating the true spirit of the final judgment and order dated 17th November, 2011 passed in the complaint case being no. 147/2011; that the Ld. Executing Court failed to appreciate the final judgment and order passed in the original complaint case; that the impugned order of the Ld. Executing Court is totally illegal, void and not binding upon the present Appellant as there was no whisper in the impugned judgment and order regarding delivery of the computer in question to the OP; that the impugned order of the Ld. Commission below is perverse and beyond the jurisdiction. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned judgment and order of the Ld. Commission below passed in the Execution Proceeding.
At the very outset of discussion it is pertinent to mention that despite service of notice Respondent, M/S Net Infotech System did not turn up to contest the present appeal. Consequently, the present appeal was proceeded ex parte against the Respondent.
Considered the submission advanced by the Ld. Counsel for the Appellant/Decree Holder on 2nd January, 2024.
Perused the brief notes of argument submitted on behalf of the Appellant/DHr.
Seen the impugned order dated 05.04.2017 vide order no. 53 passed in the Execution Proceeding being Execution no. 03/2012 and the other materials available on record.
Admittedly, the original complaint case being CC no. 147/2011 was allowed ex parte in part against the Respondent/OP on 17.11.2011. Ld. District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat was pleased to pass the following order in the complaint case.
Hence,
ORDERED
That the case be and the same is allowed ex parte in part against the OP with cost.
OP is directed to replace the computers or in the alternative to pay sum of Rs. 27,000/- together with interest @ 9% p.a. from the date of payment till its realisation. OP is further directed to pay a sum of Rs. 2,000/- towards the cost of litigation.
Since the OP remains unrepresented in the proceedings, the copy meant for such OP be handed over to the Complainant to cause service and to report.
Due to non-compliance of the above judgment and order by the OP/JDr the Complainant/Appellant was compelled to file Execution Proceeding against the OP/JDr. During the pendency of the Execution Proceeding the DHr filed an application praying for recalling the order no. 20 dated July 25, 2013 and all consequential orders for the ends of justice and to pass such other order/orders as the Ld. Executing Court may deem fit and proper. It has been categorically contended by the Complainant/DHr that there is no whisper in the judgment and order passed in the complaint case regarding delivery of the computer in question by the Decree Holder/Complainant to the JDr/OP. It has been also contended that no appeal has been preferred against the said judgment and order dated 17th November, 2011. It has been alleged that the Ld. Executing Court was pleased to direct the DHr to hand over the defective computers to the JDr which is grossly beyond the jurisdiction of the Ld. Executing Court. It has been also contended that the Decree Holder was agreed to hand over the defective computers to the JDr in order to expedite the matter and the DHr in good faith brought the said defective product before the Ld. Commission below on several occasion but the JDr flatly refused to accept the same for the reasons best known to him. It has been also alleged that the JDr has been dragging the execution proceeding for last several years in the guise of taking back the defective computers. According to the DHr/Complainant the order dated 25th July, 2013 vide order no. 20 and all other consequential orders are required to be recalled for the ends of justice. On all such grounds the Appellant/DHr has prayed for recalling the order no. 20 dated 25th July, 2013. On 05.04.2017 vide order no. 53 Ld. Executing Court was pleased to reject the said application and also directed the JDr/Complainant to return the computer on proper receipt.
In the complaint case Ld. DCDRC, North 24 Parganas at Barasat was pleased to direct the OP to replace the computers or in the alternative to pay sum of Rs. 27,000/- together with interest @9% P.A. from the date of payment till its realisation. OP was further directed to pay a sum of Rs. 2,000/- towards the cost of litigation. It is crystal clear from the order dated 23.05.2013 vide order no. 17 that the JDr deposited Rs. 10,000/- as part payment towards the decreetal dues. Ld. Executing Court further directed the decree holder to follow the order dated 02.05.2013 vide order no. 15.
During the course of hearing Ld. Counsel appearing for the Appellant/DHr has vehemently argued that an executing Court cannot travel beyond the decree and this is the settled principles of law on this issue Ld. Counsel has drawn our attention to the final order passed in the original complaint case (CC/147/2011) and the impugned order dated 05.04.2017 vide order no. 53 and boldly urged that the Ld. Executing Court has passed the impugned order by overlapping the decree. It is strenuously argued that an Executing Court has to execute the original decree passed in the complaint case but the Executing Court cannot travel beyond the decree.
“27 penalty for non-compliance of order- (1) where a trader or a person against whom a complaint is made or the Complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be such trader or person or Complainant shall be punishable with imprisonment for a term which shall not be less than one-month, but which may extend to three years, or with fine, which shall not be less than two thousand rupees, but which may extend to ten thousand rupees, or with both.”
Section 27A of the Consumer Protection Act, 1986 envisages as follows:-
“27A Appeal against order passed under Section 27.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), where an order is passed under Sub-Section (1) of Section 72 an Appeal shall lie both on facts and law from-
(i) The order made by the District Commission to the State Commission;
(ii) The order made by the State Commission to the National Commission; and
(iii) The order made by the National Commission to the Supreme Court.
(2) Except as provided in Sub-Section (1), no Appeal shall lie before any court, from any order of a District commission or a State Commission or the National Commission, as the case may be.
(3) Every appeal under this Section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission:
Provided that the State Commission of the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of thirty days.”
From the conjoint reading of Sections 27 and 27A of the said Act it is crystal clear that an Appeal under Section 27A can lie before the State Commission on facts and law if an order of conviction and sentence is passed under Section 27(1) of the Act by the Commission. As against an order of conviction and sentence made by the State Commission, an Appeal can be preferred to the Hon’ble National Commission and order of conviction and sentence passed by the Hon’ble National Commission would be appealable before the Hon’ble Supreme Court.
It reveals that the present appeal has been preferred challenging the impugned order dated 05.04.2017 passed in the Execution Proceeding wherein Ld. Executing Court was pleased to direct the Decree Holder to return the computer on proper receipt and to report.
We have meticulously perused the final judgment and order passed in the complaint case and the orders passed in the execution proceeding by the Ld. Executing Court. Undoubtedly, the Ld. Executing Court sitting in execution proceeding certainly traveled beyond the decree by recording an order directing the Decree Holder to return the computer after taking proper receipt and to report the Executing Court. In our considered view the Ld. Executing Court has totally failed to appreciate the spirit of the final order passed in the complaint case. Thus, it is palpable that the Ld. Executing Court certainly traveled beyond the judgment and order passed by the Ld. District Commission in the complaint case. The order dated 05.04.2017 (order no. 53, order dated 02.05.2013 vide order no. 15 and order dated 23.05.2013 vide order no. 17 are not inconformity with the final judgment and order passed by the Ld. District Commission in the complaint proceeding. Practically, an Executing Court has no such power or scope to change the nature and spirit of the final judgment and order in any way and in any manner. The Executing Court gets the jurisdiction only to execute the order in accordance with the procedure laid down under Order XXI of the Civil Procedure Code, 1908. In our considered view the Executing Court has certainly exceeded its jurisdiction by travelling beyond the judgment and order passed by the Ld. Commission below in the original complaint case. Thus, we are compelled to hold that there are irregularity and illegality in the impugned order passed by the Ld. Executing Court in Execution Case no. 03/2012.
The impugned order deserves interference of this Appellate Authority.
Resultantly, the present appeal succeeds.
It is, therefore,
O R D E R E D
That the present appeal being First Appeal no. A/624/2017 be and the same is allowed ex parte against the Respondent/JDr but considering the circumstances without any order as to costs.
That the impugned order dated 05.04.2017 vide order no. 53 passed by the Ld. Executing Court in connection with Execution Case no. 03/2012 is hereby set aside.
That the Ld. Executing Court is directed to execute the judgment and order of the Ld. Commission below passed in connection with Complaint Case no. 147/2011 on 17.11.2011 in its letter and spirit observing the procedures laid down under Order XXI of the Civil Procedure Code, 1908 and dispose of the Execution Proceeding as expeditiously as possible preferably within six months hereof.
Let a copy of this judgment be transmitted to the Ld. Executing Court (District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat) forthwith for information and taking necessary action.
Interim order, if any, stands vacated.
Let a copy of this order be handed over to the Appellant/Complainant through Ld. Counsel.
Let a copy of this order be sent to the Respondent/JDr from the Registry for information and necessary action.
Both sides are directed to appear before the Ld. Executing Court on 09.02.2024 for receiving further order/orders.
Thus, the present Appeal stands disposed of.
Note accordingly.
