ORDER

(Passed on – 04^h  August, 2018)

As per Hon’ble President. Mr. Shekhar Muley.

1.                    This application is filed u/s 25 of the Consumer Protection Act, 1986 (for short ¨the Act¨) for enforcement of the order of the forum. The complainant/ applicant has  prayed for appointment of commissioner to direct him to execute sale deed of the plot in his favour.

2.                        The Opposite Party (OP)  has opposed the execution application mainly on the ground that the Hon’ble National Commission has stayed the order of the forum in revision petition filed by the OP. Besides, the Civil Court has also passed an order whereby it has restrained the OP from creating third party interest over the disputed plot. It is contended, in view of these orders execution of sale deed is not possible and therefore execution application cannot be allowed.

3.                   We have heard both the Ld counsels at length.

4.                    Before we proceed to decide the rival contentions it would be apposite to narrate some facts emerging from the record. The complainant had entered into an agreement with the OP for construction on plot No. 13 on land Survey No. 57/2 of Mouza Hudkeshwar. She paid some amount. Since the OP failed to execute sale deed, she had filed consumer complaint against the OP. The forum by its order dated 5/5/2009 partly allowed the complaint against the OP directing him to execute sale deed of the plot after obtaining permission to convert the land into non agriculture purpose and after the complainant depositing balance amount of Rs. 1 lakh. Besides that compensation and cost of litigation were also directed to be paid. The OP challenged that order in appeal before the Hon´ble State Commission vide F.A No. A/09/761. The appeal was dismissed on 5/10/2011 thereby confirming the order of the forum. Thereafter,  the OP did not challenge that order before Hon´ble National Commission or before any Appellate Authority. As such, the order passed by the forum and confirmed by the State Commission has attained finality u/s 24 of the Act. Since the OP even thereafter failed to comply the order, the complainant initiated execution proceeding u/s 27 of the Act, vide E.A. No. 12/02 against the OP. The forum by order dated 16/4/2013 found the OP guilty of non compliance of the order and convicted him and sentenced to suffer 6 months simple imprisonment and fine of Rs. 10,000/- in default to suffer further S.I. for 1 month. Being aggrieved with the order of conviction, the OP filed appeal, vide F.A No. 13/69, before the State Commission. However he could not succeed and his appeal was dismissed on  5/10/2016.

5.                       It is necessary to mention here that in February 2012 the OP had instituted a civil suit vide Regular Civil Suit No. 3470/2012 against the complainant in respect of the same disputed land. However, the plaint was rejected under Order VII Rule 11(d) of the Code of Civil Procedure by the court on 16/1/2014. That order appears to have not been challenged. Thereafter in February 2016, the brother of the OP instituted a civil suit vide Reg C.S No. 160/2016 against the OP and his daughter for partition, declaration and injunction concerning the same disputed land. In that suit the plaintiff applied for maintaining status quo and the court on 11/2/2016 has directed both the parties to maintain status quo till filing of reply or until further order, whichever was earlier. That suit is still pending.

6.                     As the State Commission dismissed the appeal against the order of conviction u/s 27 of the Act, the OP preferred revision petition No. 3498 of 2016 before the Hon’ble National Commission, which is still pending. In that revision petition execution of the impugned order has been stayed. It may also be noted that the OP had also filed Writ Petition No. 4820 of 2017 against the complainant to challenge the order passed by the forum in original consumer complaint. That Writ Petition was dismissed on 19/4/2018. Stay was granted by the Hon’ble High Court till 15/5/2018 and thereafter it ceased to operate. It was specifically stated in the order that it is open for the forum to proceed with the application filed u/s 25 of the Act.

7.                           Ld counsel for the complainant has submitted, there is now no bar or impediment in proceeding with the execution application and the High Court has clearly directed the forum to proceed with this execution application. As against this, ld counsel for the OP submitted that a stay order passed by Hon´ble National Commission in revision petition No. 3498 of 2016 is in operation. She further pointed out that the civil court has also restrained the OP from creating third party interest and therefore presently order of the forum cannot be executed.

8.                        Thus the OP has relied on two orders, one by the National Commission and other by the civil court to counter the execution of the order. Let us first consider the stay order passed by the Hon´ble National Commission. This stay order is passed in revision petition No. 3498 of 2016. On 10/5/2018 the execution of the impugned order is stayed subject to depositing some amount by the OP. The amount has been deposited. The question is what is the impugned order, which has been stayed. This can be clarified from the order itself. The revision petition is filed against the order dated 5/10/2016 passed by the State Commission in Appeal No. 69/2013. This Appeal before the State Commission was filed against the order of conviction passed by the forum u/s 27 of the Act in E.A. No.12/2. It was not an appeal against the order passed in the complaint u/s 12 of the Act. So it is totally wrong to suggest that the order passed u/s 12 of the Act has been stayed, for, that order has already attained finality when the first appeal was dismissed. Therefore the OP cannot take shelter of the stay order passed in revision petition to thwart the process of present execution filed u/s 25 of the Act. As such, we reject the contention of the Ld counsel for the OP on this count.

9.                                  Next point pertains to the status quo granted by the civil court in a civil suit by which the parties to the suit, including the OP are directed to maintain status quo regarding disputed land. This suit for partition, declaration and injunction is instituted by the brother of the OP against him and his daughter and disputed land forms suit property. The complainant is not a party to the suit. The suit was instituted in the year 2016. Prior to the date when order of status quo was passed, the OP had already executed agreement to sell the plot to the complainant and created interest in his favour.  The suit is about the internal dispute between two brothers to which the complainant has no concern. The order does not bind the complainant. It is to be noted that when the Writ Petition No. 4820 of 2017 filed by the OP was dismissed on 19/4/2018, this status quo order was in operation, yet the High Court has directed the forum to proceed with the execution application u/s 25 of the Act. This speaks for itself that the status quo order cannot be used as a shield to stay this execution.

10.                               For aforesaid reasons, we do not find any merits in the contentions of Ld counsel for the OP to stay the execution application. Hence we reject all the contentions. The complainant is entitled to get sale deed executed. As held in Kamlesh Aggrawal v/s Narain Singh Dabbas IV (2015) CPJ 1 (SC) provisions of Order 21 Rule 32 of CPC are applicable in execution proceedings before District Forum for executing orders on complaint. In one case, Dilip V. Rakmangad v/s Deptt. Of Union Consumer Affairs, New Delhi, W.P. No. 423 of 2015 decided on 21/4/2015 by Nagpur bench of Bombay High Court direction was issued to the Registrar of District Consumer Forum to sign and execute the sale deed on behalf of the respondents. Thus the forum has power to give effect to its order passed on the complaint.

                  The application is thus allowed with following order.

ORDER

1. Application u/s 25 of the Act is allowed.
2. The complainant to prepare a draft of the sale deed in accordance with the terms of the agreement and deliver the same with a copy thereof to the forum.
3. The copy of the draft sale deed be supplied to the OP for objection, if any, regarding the draft.
4. Registrar of the forum shall execute the sale deed on behalf of the OP and get it registered.
5. The complainant shall bear the charges of stamp duty and registration of sale deed.