Complainant by filing this complaint has submitted that complainant had moved the State Commission, West Bengal in SC Case No. CC 83/2009 which was disposed of on contest vide order dated 27.06.2011 in favour of the complainant interalia directing the insurance company/op to settle the claim on merit in accordance with law within a period of 3 months and the said order was within the knowledge of the insurance company.  But even after that order op failed and neglected to comply with the same forcing the complainant insured to initiate an execution case before the State Commission for enforcement of such order being the execution case No. EA 11/2011. 

          That after initiation of such execution proceeding, the insurance company paid an amount of Rs.7,71,090/- to the insured complainant though the surveyor had assessed the loss to the tune of Rs.10,19,793/-.  Thereafter complainant received such payment with its objection and without prejudice to its rights and contention in the matter and recorded such contention of the complainant the/executing Fora and State Commission disposed of the execution proceeding vide order dated 22.05.2012 inter alia granting liberty to the complainant to file a fresh case for recovery of the balance sum of compensation from the insurance company and accordingly for non-payment of the balance amount the present case is lodged.

          So the instant case is filed within two years from the date of order of the State Commission in this regard and complainant has prayed for redressal for violating the order of the State Commission and has prayed for compensation of Rs. 2,48,703/- and for other legal circumstances.

          On the other hand op by filing written version has submitted that practically after repudiation of the claim of the complainant by the op, the complainant filed a case before Hon’ble State Commission being SC Case No. CC/83/2009 which was disposed of on 27.06.2011 by passing final order.  It is further submitted that in the surveyor’s report inadvertaintly cost of labour for installation was charged twice and the said report was received by the complainant.  So the addendum was submitted by the surveyor and that was sent to the complainant also.  Thereafter op wrote several letters to the complainant for a meeting of amicable settlement but complainant did not respond and fact remains as inadvertaintly the cost of labour charge was included twice which will be evident from the assessment column of survey report under clause-B & C of Rs.2,48,703/- and that amount had been deducted from total amount of Rs.10,19,793/- and after deducting Rs.2,48,703/-, balance amount of Rs.7,71,090/- was paid and that is accepted by the complainant.  But as per surveyor report complainant is entitled to Rs.7,71,090/- and when that has already been paid then there is no question of getting of any further amount.  But complainant is not entitled to same and practically the present complaint is not maintainable and it must be alleged before the State Commission and so the present complaint should be dismissed.

                                                    Decision with reasons

          On careful consideration of the complaint and written version and also considering the disposal of the entire claim of the complainant by the State Commission and starting of execution case by the State Commission and its disposal, it is clear that any matter in respect of that claim ought to have been decided by the State Commission in execution case and it is the settled principal of law that any matter which has come before any authority in execution case matter shall be decided in execution and executing court had no power to direct the complainant or the parties to go before any other lower authority or Forum for relalisation of balance amount.  But the entire decretal amount or decree must be fulfilled by the executing court.  But in the present case it is clear that executing court disposed of the execution case No.11/2011 passing such order that “Jdr has handed over one cheque amounting to Rs.7,71,090/- being cheque No.021291 drawn on UBI dated 18.05.2012 to the Dhr and Dhr has received the cheque with objection without prejudice its laches and continuation and it is evident from the surveyor’s report that surveyor has assessed the loss of Rs.10,19,793/- as the Jdr has not paid the full amount as per report of the surveyor Dhr has liberty to file a case afresh.   Thus the execution is thus disposed of and this is the order of the State Commission in execution case passed on 22.05.2012.

          But after considering the entire fact, it is clear that the entire complaint was disposed of by the State Commission and fact remains execution case was filed before the State Commission.  So the entire execution must be disposed by the State Commission as per and fact remains in respect of the balance amount which was not paid by the Jdr before the State Commission in the execution case should be released by the executing Fora that is the State Commission because it is settled principal of law that execution court cannot throw any decree holder for another suit or case without satisfying the decree.  So, in our opinion the present case is not tenable before this Forum.  But this execution case may be restored as per prayer of the Dhr and the grievance of the complainant may be decided by the State Commission in that execution case.  It is a principal of law that executing court must not have to throw the decree holder for another case.  Till the satisfaction of the decree execution shall be alive and it is the bounden duty of the executing court and whatever may be the status of the executing court.  So, this complaint is not maintainable in this court but complaint ought to have filed before State Commission for reopening the execution case and to dispose of the matter.

          Sometimes it is found that the execution matter is not properly dealt with by many Fora and fact remains execution proceedings must be followed as per provision of Civil Procedure Code and that is the principal of law when no positive procedure is found in the C. P. Act.  But when the State Commission started execution case then it must be disposed of finally by the executing Fora, State Commission ultimately and as per law executing court court has no power to direct the decree holder for getting further decree for balance amount and that is unknown law in the Indian Legal History.  If complainant’s decree is not satisfied in execution in that case execution case shall be continued till full relief to the complainant.

          But there was no ground for filing this complaint before this Forum complaint ought to have filed petition before executing authority the State Commission in that execution case for final satisfaction.  Forum is the lowest authority.  But legal principal is applicable to all Fora.  Considering all the fact and circumstances we are convinced to hold that this complaint is not maintainable.  When the original dispute that is consumer dispute had already been decided by the State Commission and for implementation that decree execution was started then executing court is the authority to dispose of the matter finally giving full satisfaction of the decree but that has not been done then complainant shall have to ventilate the grievance before the State Commission and law is here and there that execution proceeding can be reopened if executing court has not disposed of the matter finally and fully at per satisfaction of the decree holder.

          Fact remains most of the executing courts are not in a mood to take execution cases properly for which several cases are being filed afresh.

          In the result, the complaint fails.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the contesting op.