JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision is directed against the order of the State Commission Madhya Pradesh dated 02.08.2016 whereby the State Commission dismissed the appeal of the petitioner Mahindra and Mahindra Financial Services Ltd. against the order dated 30.12.2004 issuing Non Bailable Warrants against the manager of the petitioner finance company.

2.         Dehors the unnecessary details the facts relevant for the disposal of the revision petition are that respondent no.1 complainant filed consumer complaint in the District Forum concerned impleading respondent no.2 M/s Rishabh Motors Sales Pvt. Ltd. as also petitioner Finance Company as opposite parties. Respondent no.2 resisted the complaint by filing written statement denying the allegations of deficiency in service.  The petitioner, however, moved an application seeking deletion of his name from the array of opposite parties. After due hearing vide order dated 06.01.2007, concerned District Forum granted  plea of the petitioner and directed deletion of his name from the opposite parties.

3.         The District Forum on consideration of pleadings and evidence allowed consumer complaint against respondent no.2 M/s Rishabh Motor Sales Pvt. Ltd. and directed respondent no.2 to give rebate of Rs.20,000/- against invoice price to the complainant and also provide him the registration and insurance documents of the subject vehicle.  It was also ordered that in case the order is not complied with, respondent no.2 dealer shall be liable to pay Rs. 25,000/- as damages alongwith interest @ 12 % from the date of the order.

4.         Respondent no.2 Rishabh Motor Sales Pvt. Ltd. being aggrieved of the order of the District Forum preferred an appeal before the State Commission.  The State Commission vide its order dated 18.02.2013 disposed of the appeal with following observations:

“It has also been pointed out that the financer had charged documentation charges in the sum of Rs.2350/-, processing fee/service charges Rs.5220/-, first instalment Rs.10,560/-, thus a total sum of Rs.1,06,130/ was payable.  It is this sum which caused confusion.  Since the financer is not before us we are not concerned what he is claiming from the respondent.  The respondent has to pay Rs.68,000/- as margin money, Rs.11,682/- for  insurance and Rs.700/- towards registration charges thus a total sum of Rs.80,382/-.  As against this it is not disputed that the respondent paid Rs.10,000/- on 13.01.2006, Rs.40,000/- on 17.01.2006, Rs.20,000/- on 19.01.2006, Rs.5000/- on 03.03.2006 and Rs.5000/- on 23.03.2006 i.e. total Rs.80,000/-.  Because the documents have been with held for such a long time we ignore the sum of Rs.382/- required to be paid to the appellant towards the sum of Rs.80,382/-.  An interesting feature of this case is that initially Mahindra Finance was made as opposite party no.2 but on application having been filed by the said opposite party that no relief was claimed against it, the said opposite party was deleted from the array of the opposite parties.  Under these circumstances, no direction can be given to the Mahindra Finance to return the documents.  However, we direct the appellant to give the documents to the respondent in the event it has the documents pertaining to the insurance and registration.  Since the Mahindra Finance was a party, a direction is issued to Mahindra Finance also to handover all the documents to the respondent specially the insurance policy and the registration book.”

5.         From the record it appears that on account of non compliance of the order passed by the State Commission in appeal, respondent no.1 complainant filed execution petition and in the execution petition non bailable warrants were directed to be issued against the manager of the Petitioner Finance Company.  Being aggrieved of the order of issue of non bailable warrants in the execution proceedings, petitioner finance company filed RP No. 8 of 2015 before the State Commission on the plea that issue of non bailable warrants against the manager of the petitioner finance company who was not even party to the consumer complaint ( as his name was deleted) was without jurisdiction.  The State Commission, however, dismissed the said RP vide impugned order observing that order dated 18.02.2013 passed by the State Commission in First Appeal No. 1144 of 2007 was not challenged and has become final  and that he State Commission has no jurisdiction to review or recall the said order and as such the revision petition was dismissed.

6.         Learned counsel for the petitioner has contended that State Commission has committed a grave error in dismissing RP No. 8 of 2015 ignoring the fact that order of the State Commission dated 18.02.2013 was without jurisdiction as the directions were issued against the petitioner despite of the fact that he was not a party to the consumer complaint.  Learned counsel for the respondent on the contrary has argued in support of the impugned order and submitted that order dated 18.02.2013 was not challenged by the petitioner.  The said order has become final.  Therefore, the fora below have  not committed any error in issuing non bailable warrants against the manager of the petitioner finance company because executing court cannot go behind the decree and it has legal obligation to execute the decree in terms of the order.

7.         We have considered the rival contentions and perused the record.  It is not in dispute that although initially the petitioner was arrayed as opposite party no.2 in the consumer complaint but during the pendency of the complaint on the allegations of the petitioner for deletion of his name, District Forum had deleted name of the petitioner from array of the parties with the consent of the complainant.  Thus, it is clear that when the impugned order was passed by the State Commission, petitioner was not even a party to the proceedings.  Therefore, order of the State Commission which is the basis of the execution proceedings is an order passed without jurisdiction and is a nullity, therefore, not executable.  In our aforesaid view, we draw strength from the finding of the Supreme Court in the matter of Sunder Dass Vs. Ram Prakash  1977 AIR 1201.  Relevant observations of the Supreme Court are reproduced as under :

“The appellant, however, urged that the introduction of the proviso in section 3 should not be given greater retrospective operation than necessary and it should not be so construed as to affect decrees for eviction which had al-ready become final between the parties. Now, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be seen to have been meant by the legislature. This rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should have validity in the context of changed social norms and values. But even so, we do not see how the retrospective introduction of the proviso in section 3 can be construed so as to leave unimpaired a decree for eviction already passed, when the question arises in execution whether it is a nullity. The logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the date when the Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning. This would clearly render the decree for eviction a nullity and since in execution proceeding, an objection as to nullity of a decree can always be raised and the executing court can examine whether the decree is a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3. Moreover the words notwithstanding any Judgment, decree or order of any court or other authority in the proviso make it clear and leave no doubt that the legislature intended that the finality of "judgment, decree or order of any court or other authority" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions of the Delhi Rent Control Act, 1958 in cases falling in the proviso.

We are therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court was justified in declining to execute it against the respondent.”

8.         In view of the discussion above, we are of the view that impugned order of the Fora below suffer from material irregularity and jurisdictional error.  Accordingly, revision petition is allowed and impugned order against the petitioner finance company is set aside.