22-07-2015 - Heard Mr. Vijay Kumar, learned counsel appearing for the appellant on the prayer for condoning the delay of about 35 days in filing this appeal, as well as on merits.

2. This appeal has been filed against the order dated 15.04.2015 passed in Execution Case No. 01 of 2014 by learned District Consumer Forum, Chatra, rejecting the Execution Case.
3. Mr. Vijay Kumar submitted as follows. The appellant-complainant is not getting fruits of the decree. The J. Dr. Nidan Kendra was a firm which is now running in the name and style of ‘Janch-Ghar’ and Sanny Keshari was an employee of Nidan Kendra whereas Rohit Jain @ Monty Jain was the owner of the house in which the firm Nidan Kendra was running and Manish Kumar was the owner of the landline telephone Number which was printed on the proforma of the pathological report.
4. It appears that the appellant-complainant filed the complaint case against O.P-1- Dr. Nand Kishor Prasad Jaiswal and O.P.-2- “Nidan Kendra, Pathologist, Main Road Chartra”. The learned District Forum inter alia held that there was no medical negligence/deficiency on service on the part of  the Doctor-O.P.-1 but found negligence/deficiency in service on the part of O.P.-2 and accordingly directed O.P.-2 to pay Rs. 50,000/- as compensation for loss of the life of  daughter of the complainant along with 5,000/- as litigation cost within two months of the order failing which O.P.-2 was also to pay the said amount with interest @ 10% per annum from the date of the judgment  till the date of actual payment.
5. The appellant filed an execution case, being Execution Case No. 01 of 2012 against Sanny Keshari (O.P.-3 herein). That Execution Case was dropped by order dated 27.08.2014 on the ground that the decree in the said complaint case was not executable against Sanny Keshari as he had no concern with the said Nidan Kendra, in any manner and he was neither the owner nor the pathologist of Nidan Kendra.
6. Thereafter the appellant filed another execution case being Execution Case No. 01of 2014 against the Respondents herein namely Rohit Jain @ Monty Jain, Manish Kumar and Sanny Keshari.

7. The learned District Forum interalia held that the judgment was passed against Nidan Kendra, and not against any firm and moreover after inordinate delay the second execution case was filed, against the said persons, which was not tenable.

  In our opinion a ‘firm’ may be a proprietorship firm or partnership firm. Unfortunately, the appellant neither impleaded nor proved who was the owner/proprietor/partner/in-charge of the affairs, of the said firm- Nidan Kendra.

9. However, in view of the provisions of order XXI- Rule 50(2) of the Code of Civil Procedure, the appellant may file a fresh execution case for proving who was the owner/proprietor/partner/in-charge of affairs of the said Nidan Kendra, at the relevant time.

As we are not interfering with the impugned order, the delay in filing this appeal is ignored.

With these observations and directions this appeal stands disposed off.

This matter was heard by the bench consisting of the President and the Member Mrs. Sumedha Tripathi. After the order was dictated with her consent, she informed that she would be absent for her treatment, and she is not sure when she will be available.Therefore this order is being pronounced and signed by the President, keeping in view the judgement of Hon’ble Kerala High Court dated 25.02.2013, passed in W.P. (C) No.30939 of 2010 (N)- P.K. Jose – vs. – M. Aby & ors.

           Issue free copy of this order to all concerned for information and needful.

           Ranchi,

           Dated:-22-07-2015