HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 73 of the Consumer Protection Act, 2019 challenging the impugned order No. 43 dated 29.09.2022 passed by the Learned District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat ( in short, ‘the District Commission’) in connection with the Execution Case No. EA/44/2022 filed by the Appellant / DHr. by which the Execution Case was disposed of on full satisfaction.

2. The short fact of the case is that the Appellants / Decree Holders filed a complaint case against the Respondents being No. CC/343/2010 and the said complaint case was allowed on 16.05.2012. Against that order of the District Commission the Respondents / Opposite Parties preferred an appeal before this Commission being S C Case No. FA/300/2012 and the said appeal was dismissed on contest and the order of the Learned District Commission was confirmed. Against the order of dismissal the Respondents /Opposite Parties / Judgment Debtors preferred a revision before the Hon’ble National Commission being First Appeal No. FA/300/2012. The Hon’ble National Commission has been pleased to direct to remand back the same to the State Commission being No. FA/300/2012.

3. It further appears that this Commission heard the said case again and passed the following order in the form of that :-

“In view of the above, the Appeal is allowed on contest in part with a modification of the Order the extent that the Appellants / Opposite Parties will issue Letter of Possession of the Property mentioned in Schedule ‘B’ to the Supplementary Agreement dated 20/04/2008 within one month from date subject to payment of Rs.1,56,000/- by the Respondent / Complainant.

With the above observation and directions, the Appeal disposed of .

The Registrar of this Commission is directed to send a copy of this Order of the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.

The Order of compensation of Rs.20,000/- and litigation cost of Rs.5,000/- as imposed by Ld. District Forum are maintained and the said amount will be adjusted from the payment Rs.1,56,000/-.”

4. The Respondents / Judgment Debtors did not comply with the said order of this Commission in a reasonable time and the order of the State Commission has not been vacated or set aside by higher forum. The Appellants / Decree Holders filed Execution Case to execute the order of the State Commission. On 29.09.2022 the Executing Court / District Commission disposed of the said Execution Case on full satisfaction by the impugned order.

5. Being aggrieved by and dissatisfied with the said order, this appeal has been preferred. It is the contention of the Learned Advocate appearing for the Appellants / Decree Holders is that Learned District Commission failed to appreciate that there was no documents put forward by the Respondents / Opposite Parties which would show that the Respondents / Opposite Parties complied with the order of the Hon’ble State Commission dated 16.08.2018. He has further urged that Learned District Commission failed to appreciate that the Respondents / Opposite Parties neither gave possession letter nor physical possession of the schedule property as per the order dated 16.08.2022 of the State Commission. So, the appeal should be allowed and the impugned order should be set aside.

6. On the other hand, Learned Advocate appearing for the Respondents / Judgment Debtors has urged that the order is legal and valid and it should not be set aside.

7. Sub section 1 of section 72 of the Consumer Protection Act, 2019 runs as follows :-

“72. (1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, 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 twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.”

8. Section 73 of the Consumer Protection Act, 2019 also runs as follows :-

 “73. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, where an order is passed under sub-section  (1) of section 72, an appeal shall lie, both on facts and on law from –

a) the order made by the District Commission 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 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 order of a District Commission or a State Commission or the National Commission, as the case may be:

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

9. From the conjoint reading of the section 72(1) & 73 it is clear that an appeal under section 73 can lie before the State Commission on facts of law, if an order of conviction and sentence is passed under section 72(1) of the Act by the District Commission.

10. It appears that no order of sentence and imprisonment was passed by the Learned District Commission and no order of sentence or imprisonment has been assailed before this Commission and has not been brought on record. Since, the appeal under section 73 is maintainable only if the order of sentence or imprisonment is passed and not mere dropping of the case on full satisfaction. In this connection, it would be appropriate to reproduce the impugned order passed by the Learned District Commission :-  

“43. Both parties are present.

Heard both sides.

Considered the petition filed by by Jdr on 27/05/2022 and W.O. dated 19/07/2022 and also the judgment of the appellate Commission.

In view of the judgment of the appellate Commission and the fact and circumstances it appears that the Jdr has fully complied with the judgment in appeal and therefore nothing is to be complied with .

So the petition of Jdr is allowed.

It is ordered,

that the case is disposed of on full satisfaction.”

11. It, therefore, appears that the District Commission dropped the Execution Case on full satisfaction. Therefore, the appeal under section 73 will not be maintainable against the order of dropping the case on full satisfaction.

12. This apart, there is a delay in filing of the appeal. The Appellants / Judgment Debtors have filed an application praying for condonation of delay in filing the appeal. In the delay condonation application the Appellants / Judgment Debtors have stated that the cause of delay in paragraphs No. 2,3,4 & 5 of the application for condonation of delay. The Appellants / Judgment Debtors have stated that the Appellant No. 1 was suffering from equate health elements. The Appellant No. 2 was suffering from prostate cancer. This was a major cause of delay in preferring the appeal. This apart, appellants were suffering from various health and economic issues. As such, they could not contact with their Lawyer properly and to know about the decision of the order dated 29.09.2022. Further cause of delay in filing the appeal was that the Appellants took time to find legal counsel for the appeal.

13. On careful perusal of the record it appears to us that the cause shown is insufficient. This cause has been taken by the Appellants only to mislead this Commission and to abuse the process of law. Therefore, delay in filing the appeal by the appellants cannot be condoned. Therefore, we may conclude that this appeal is barred by limitation and is not maintainable in law.

14. Considering the facts and circumstances, we are of the view that this appeal deserves to be dismissed in limini as not maintainable. In the result, the appeal is therefore dismissed in limini and not maintainable with no order as to costs.

15. The appeal is thus disposed of accordingly.

16. Consequently, the I.A. being No. 536/23 stands disposed of.