BEFORE THE ADDITIONAL BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
FA.No.285/2009 against I.A.No.211/2007 and I.A.No.272/2008 in E.P.No.12/2005 in C.C.No.115/2005, District Forum, Prakasam at Ongole.
Between:
1. Jaya Enterprises, rep. by its
Managing Partner K.Babu Rao,
Aged 54 years, R/o.Inkollu
Parchuru DMC, Prakasam District.
2. Kandikanti Babu Rao, S/o.Sambasiva Rao,
Aged 54 years, R/o.Inkollu,
Parchuru DMC, Prakasam Dist.,
3. S.K.Meeravali, S/o.Mastan Vali,
Aged 37 years, Occ:Business,
R/o.Behind Deluxe theatre,
Inkollu, Prakasam District.
4. N.Venkateswarlu, S/o.Lakshmaiah,
Aged 60 years, Hindu, Occ:Business,
R/o.Inkollu, Parchur DMC.,
Prakasam Dist., .Appellants/
Petitioners.
And
1. P.Ram Prasad, reptd. By their
G.P.A.Holder Mocharla Subba Rao,
S/o.Narsimha, Occ:Business,
R/o.Near Prasad theatre,
Chirala, Prakasam District.
2. Vetukuri Ranganayakulu
(Ex.Managing Partner)
Jaya Enterprises, H.No.26,
M.G.H.Colony, Chirala,
Prakasam District.
3. Kota Ram Kumar (Partner)
Jaya Enterprises, H.No.173,
M.G.H.Colony, Chirala,
Prakasam District. Respondents/
Respondents
Counsel for the Appellant: Mr.K.Naga Prasad.
Counsel for the Respondents. Mr.M.Ramgopal Reddy
QUORUM:SRI SYED ABDULLAH, MEMBER.
AND
SRI K.SATYANAND, MEMBER.
MONDAY, THE THIRTY FIRST DAY OF AUGUST,
TWO THOUSAND NINE
ORAL ORDER: (Per Sri K.Satyanand, Hon'ble Member .)
***
This is an unusual appeal filed against two orders in two interlocutory applications arising out of an ‘Execution Petition’ 12/2005 in Consumer Complaint No.115/2005 on the file of District Forum, Prakasam at Ongole. The appeal is characterized as unusual as it makes a departure from the time tested practice of filing revisions only against interlocutory orders as the device of appeal is set apart by force of practice only for assailing the final orders passed by the District Forum in the Consumer Complaints invoking the jurisdiction under Section 15 of the Consumer Protection Act. Be that as it may, this litigation exemplifies the ease with which the abuse of process of law can be carried on to its extremities threatening the very fabric of rule of law.
The brief history and the current facts of this matter the proper appreciation of which is essential for rescuing the issues from the mire of total confusion are narrated below:
The first respondent and 40 others filed a consumer complaint C.C.No.115/2005 against the appellants and some others in the District Forum, Prakasam at Ongole. The District Forum passed an order on merits, the operative portion of which is as follows:
“In the result, the petition is allowed directing the opposite parties
to pay the amounts due to the complainants 1 to 41 as shown in
annexure together with interest @ 18% p.a. from the date of
maturity till the date of payments. The opposite parties further
directed to pay compensation of Rs.3,000/- for each cash certificate
holder with interest @ 12% p.a. from the date of this petition i.e.
from 6-4-2005 till the date of realization and with costs of Rs.1,000/-.
On the strength of the said order, the successful consumer complainants filed E.P.No.12/2005 obviously for reaping the fruits of the order in the said E.P. for attachment and sale of the schedule property. The District Forum proceeded to take further steps. During the pendency of the said proceedings, one Atmakuri Punnaiah filed O.S.No.11/2005 in the court of Principal Junior Civil Judge, Addanki with a prayer that Jaya Enterprises and other defendants be restrained from cutting and selling 14 trees grown under the scheme evolved by the petitioner from out of which the consumer dispute arose. The said Atmakuri Punnaiah also filed an application under Order 39 Rules 1 and 2 of the C.P.C. which was registered as I.A.No.74/2005. By an order dated 1-2-2005, the trial court restrained the defendants including Jaya Enterprises, the first appellant, herein, from cutting the trees planted in the said suit property. The said order was produced by the appellant itself in the proceedings of E.P.No.12/2005 instituted by the successful complainants before the District Forum for execution of the order in its favour obviously to stall the said E.P. At one stage, the District Forum deferred the proceedings of E.P. 12/2005 on the ground of pendency of I.A.No.88/2006 in O.S.No.11/2005 and receipt of notice issued by the trial court. But after hearing the parties, the District Forum passed an order for attachment of the property specified in the schedule appended to E.P.No.12/2005. This attachment order was impugned by the first appellant in a Writ Petition bearing No.19893/2006 making not only the complainants in consumer dispute but also the District Forum itself as respondents praying for issue of writ of Mandamus declaring the action of District Forum in proceeding with the E.P.No.12/2005 in C.C.No.115/2005 during the subsistence of the injunction orders in I.A.No.74/2005 in O.S.No.11/2005 on the file of Principal Junior Civil Judge, Addanki as illegal, arbitrary, improper and consequently permitting the first appellant-writ petitioner to sell its assets and to distribute the same to its members and to grant such other relief or reliefs. Along with the said Writ Petition, the first appellant also filed W.P.M.P. for stay of all further proceedings in E.P.No.12/2005 in C.C.No.115/2005. The Hon’ble High Court heard both sides in the said writ petition and finally dismissed the writ petition upholding the jurisdiction of the District Forum to attach the properties of the first appellant for the purpose of executing the order dated 5-7-2005 in C.C.No.115/2005. As a sequel to the dismissal of the Writ Petition, W.P.M.P. was also dismissed. It seems more or less simultaneously, Atmakuri Punnaiah, a third party to the C.D., himself filed a Writ Petition against the District Forum as also the complainants in the C.D. as also the first appellant herein praying the Hon’ble High Court to issue a writ in the nature of Mandamus to declare the action of the District Forum in proceeding with E.P.No.12/2005 in C.C.No.115/2005 during the subsistence of the injunction orders in I.A.No.74/2005 in O.S.No.11/2005 on the file of Principal Junior Civil Judge, Addanki as illegal arbitrary, improper and consequently seeking a direction to the District Forum not to proceed with E.P.No.12/2005 in C.C.No.115/2005 till the disposal of suit in O.S.No.11/2005 on the file of Principal Junior Civil Judge, Addanki. But the said writ petition was withdrawn by the said Atmakuri Punnaiah, a third party to the consumer dispute and E.P.12/2005 in C.C.No.115/2005 and got it dismissed as with drawn with a liberty to pursue other remedies.
Thus the proceedings in E.P.No.12/2005 in C.C.No.115/2005 were, unsuccessfully, sought to be scuttled by the first appellant taking advantage of some injunction order by a third party against itself. A few days later, the District Forum passed an order dated 4-10-2006 in E.P.No.12/2005 in C.C.No.115/2005 brushing aside the objections filed by the J.Drs. including the first appellant and directing the office to check the sale papers and E.Cs. by 09-10-2006. It seems subsequently, Atmakuri Punnaiah, again obtained a temporary injunction in I.A.No.713/2007 in O.S.No.11/2005 restraining the District Forum from proceeding with the auction sale in E.P.No.12/2005 till the disposal of the petition. On the strength of the said injunction order, the first appellant claimed to have prayed the District Forum to postpone the sale. It was also alleged by the first appellant in the said proceedings that the ‘Judgement debtors’ by which they mean the consumer complainants filed I.A.No.1929/2008 to imnplead themselves as party in the civil suit, O.S.No.11/2005. Taking advantage of these two circumstances, the appellants herein, filed I.A.No.211/2007 to postpone the sale of the E.P. schedule mentioned properties and I.A.No.272/2008 to dismiss the E.P.No.12/2005. The District Forum dismissed both the I.As. relying heavily upon the order of the Hon’ble High Court in the Writ Petition aforementioned maintaining that the High Court held that the Forum can proceed in the E.P.No.12/2005 in C.C.No.115/2005. No doubt the District Forum wrongly presented the fact in para 12 of the impugned order as if the Hon’ble High Court had occasion to consider the power of interdiction possessed by an injunction order of the civil court in I.A.No.713/2007 in the said Writ Petition of 2006 namely W.P.No.19893/2006 which was in fact disposed of on 28-9-2006 itself. However, at the end of its order, the District Forum dismissed both the I.As. initiated to fore-stall the outcome of the E.P. in the C.C.
Aggrieved by the said order of the District Forum, the present appeal is filed on the grounds inter alia that the District Forum did not follow principles of natural justice. The Presiding Officer, who passed the order had no jurisdiction since he ceased to be a Member and the entire proceedings were a nullity. The District Forum failed to take into consideration the authorities submitted by the counsel for the appellants while arguing I.A.No.211/2007. The District Forum misconceived the injunction orders in I.A.No.713/2007 when it was specifically passed against the District Forum, Prakasam at Ongole in relation to E.P.No.12/2005 in C.C.No.115/2005 “under the guise of orders in A.P.High Court Writ Petitions”.
Heard both sides. Before actually going into the merits of this appeal, it is necessary to evaluate the adherence of the law in the procedure followed by the District Forum on one hand and the appellants on the other. In these circumstances a kind of forthright discussion, on the correct position of law which belongs to the realm of fundamental duty of a court, especially sitting in the appellate stage is in fitness of things. The following discussion is therefore divided into three parts. Part I deals with the procedure followed by the District Forum and Para II deals with the procedure followed by the appellant as one of the opposite parties in trying to put spokes in the procedure resorted to by the District Forum obviously on the initiation of the proceedings by the complainant. Then part III deals with the line of action that is now open to this appellate court while disposing of the matter.
Basically all these proceedings emanate from out of C.C.No.115/2005 filed on 6-4-2005. By 6-4-2005 the law relating to the execution of the orders passed by the Consumer Fora has suffered radical amendments making a total break with the earlier procedure under the erstwhile Section 25. Under the earlier dispensation or the old provisions of Section 25, the District Forum and the other Fora under the Consumer Protection Act were clothed with the power to execute their orders like the decrees of a civil court. Perhaps, in that dispensation, they had access to the mode of attachment and sale provided for under the provisions of Civil Procedure Code as those orders were then marked to be implemented by treating as if they were decrees of the civil court. However, the subsequent amendment of Section 25 as also Section 27 in the year 2002 by way of Act 62 of 2002 which came into force with effect from 15-3-2003, the whole procedure of execution of the orders passed by the District Forum had undergone a total change. It is therefore necessary in this context to have before us the provisions of Section 25 as it existed before amendment and as it is obtaining after amendment.
Before amendment,
25. Enforecement of orders by the District Forum, the State Commission
or the National Commission: Every order made by the District Forum,
the State Commission or the National Commission may be enforced by
the District Forum, the State Commission or the National Commission,
as the case may be, in the same manner as if it were a decree or order
made by a Court in a suit pending therein and it shall be lawful for the
District Forum, the State Commission or the National Commission to
send, in the event of its inability to execute it, such order to the Court
within the local limits of whose jurisdiction-
a) in the case of an order against a company, the registered office
of the company is situated; or
b) in the case of an order against any other persons, the place
where the person concerned voluntarily resides or carries on
business or personally works for gain, is situated, and thereupon,
the Court to which the order is so sent, shall execute the order
as if it were a decree or order sent to it for execution.
After amendment,
25. Enforcement of orders of District Forum, the State Commission or
the National Commission: 1) Where an interim order made under
this Act, is not complied with the District Forum or the State
Commission or the National Commission, as the case may be,
may order the property of the person, not complying with such
order to be attached.
2) No attachment made under sub section (1) shall remain in force
for more than three months at the end of which, if the non-
compliance continues, the property attached may be sold and
out of the proceeds thereof, the District Forum or the State
Commission or the National Commission may award such damages
as it thinks fit to the complainant and shall pay the balance, if any,
to the party entitled thereo.
3) Where any amount is due from any person under an order made
by a District Forum, State Commission or the National Commission,
as the case may be, the person entitled to the amount may make
an application to the District Forum, the State Commission or the
National Commission, as the case may be, and such District Forum, the
State Commission or the National Commission may issue a certificate
for the said amount to the Collector of the district (by whatever
name called) and the Collector shall proceed to recover the amount
in the same manner as arrears of land revenue)
From a comparative study of Sec.25 before and after amendment of the year, 2002, under the new provisions the procedure of attachment and sale is applicable for enforcement of only interim order; but not final order in the consumer complaint for which the new Sec 25(3) is applicable. Undoubtedly this whole litigation even from its inception began only after the amendment of Section 25. Therefore, it is incomprehensible as to how the execution petition in the instant case in E.P.No.12/2005 had come to be processed applying the provisions of the old Section 25 instead of new section 25(3). The decision rendered by the National Commission in BIRLA VXL LIMITED v. NATIONAL INSURANCE COMPANY LIMITED 2003 CTJ 662 (NC) (CP) = 2003(III) CPJ 111 (NC) makes it all the more clear that even in cases that have come to be finalized before the advent of amendment on 15-3-2003 will have to be enforced under the amended provisions only. When such is the course as per the law, the recourse to the old section cannot but invite a kind of corrective criticism by the appellate court.
This part of the discussion centers around the acts of the appellant No.1 in seeing to it that the progress of the execution proceedings are stifled to its advantage. In the first place an attempt was made to take advantage a limited interim order(trees) that too obtained by a third party, Atmakuri Punnaiah, against no other than the first appellant itself as also the other opposite parties in the consumer complaint obviously after consumer complaint was taken cognizance of? The said attempts were foiled as is evident from the order of the Hon’ble High Court in W.P.No.19893/2006. The very inroads made by the appellant harnessing an interim order that was passed by a civil court in a civil suit to which the consumer complainants were not a party is definitely derogative of the valid principles of law. It is very clear from Section 41 of the Specific Relief Act which will be dealt with in extenso after we reach the stage in the discussion dealing with the blanket injunction order obtained by a third party against the District Forum with the allowed object of preventing the onward progress in the execution petition. As the first interim order obtained by a third party which was sought to be fully availed of by the appellants had come to be set at naught by the judgment of the Hon’ble High Court in the writ petition and the execution petition initiated by the complainant had marked some progress. Yet another injunction order obtained by the said Atmakuri Punnaiah once again in the year 2007 in I.A.No.713/2007 in O.S.No.11/2005 was pressed into service to nullify the effect of the judgement of the Hon’ble High Court upholding the power of the District Forum to go ahead with the follow up action in the E.P. including the attachment and sale. So the subsequent order in I.A.No.713/2007 had come to be tailored more directly targeting the onward progress in the E.P. The said order very directly issued an injunction against the District Forum directing it to desist from selling the E.P. schedule property. This is a very extraordinary case in which a court of Junior Sub Judge passed an order of injunction against the District Forum and in this connection, it is not out of place to bring on record the statutory mandate contained in Section 41 of the Specific Relief Act, which reads as follows:
41.Injunction when refused:-An injunction cannot be granted.
a) to restrain any person from prosecuting a judicial proceeding
pending at the institution of the suit in which the injunction is sought,
unless such restraint is necessary to prevent a multiplicity of
proceedings;
b) to restrain any person from instituting or prosecuting any proceeding
in a Court not subordinate to that from which the injunction is sought;
………………………….
This Commission deems it proper to leave this discussion at this point.
The line of action now available to this Commission in this appeal is decisive of the fate of this appeal. If we go by the law laid down in the Writ Petition filed in the Hon’ble High Court all that should follow attachment once upheld must follow as the upholding of attachment, automatically signals, by implication, the onward precession. But this is a case in which a Junior Civil Judge’s court issued an injunction by name against the office of the President, District Forum. In our opinion, neither the District Forum nor this Commission, would do well to brush it aside as illegal in the interest of judicial discipline which requires that as far as practicable, the orders of a court must be honoured in order to avert controversy even when there is a patent suspicion as to its legality amd the same is reversed by due process of law. It is rather unfortunate that the other side did not take steps to see that the order passed by the Junior Civil Judge prohibiting the District Forum from forging ahead with the judicial process, was subjected to judicial scrutiny and review. In these circumstances, we feel bound by the said order. Furthermore the stand taken by the District Forum brushing aside the said order as not binding cannot be fully accepted in the interest of judicial harmony that is very much required so much so that we are not in a position to uphold the order of the District Forum in I.A.No.211/2007 declining to postpone the sale of E.P. schedule mentioned properties. However, we do not see any fault in the disobliging the order of the District Forum in I.A.No.272/2008 seeking dismissal of the E.P.No.12/2005. The only ground urged for dismissal of the E.P. according to the appellant was that the D.Hr. themselves in the present E.P. filed a petition for impleadment in the O.S.No.11/2005. Such a contention is devoid of any meaning. After all an interim order of a civil court or any act of the party which cannot be accorded any finality would hardly decide the fate of E.P.12/2005. It is necessary that the E.P. 12/2005 once for all. should be retained very much on file. In these circumstances, we feel that the appeal has to be allowed in part only in so far as it relates to the order in I.A.No.211/2007 and the appeal has to be dismissed in so far as it relates to the order in I.A.No.272/2008.
Accordingly the appeal is allowed in part directing the District Forum to keep the E.P.12/2005 pending but at the same time give a pause by way of postponing the sale, if the sale is not so far concluded or all other further proceedings in pursuance thereof till the order in I.A.No.713/2007 in O.S.NO.11/2005 remains in force against the District Forum, Prakasam at Ongole. There shall be no order as to costs.
MEMBER.
MEMBER
Dated 31-8-2009
