No. 2/19.07.2010

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Heard Mr. Sourav Guha Thakurata, the Ld. Advocate for the Revision Petitioner.  This revisional application is directed against the order dated 26.05.2010 passed by the Executing Court.  The JDR has raised the question of maintainability of the execution case before the Executing Court by raising two points.  First, a single petition under Section 25/27 of the C. P. Act was not maintainable.  Second, the Decree Holder obtained the decree by practicing fraud before the District Consumer Forum.

It is not in dispute that the decree passed by the District Forum was affirmed upto the Hon’ble National Commission.  The Special Leave Petition filed by the JDR against the judgement and order of Hon’ble National Commission has also been dismissed.

In these circumstances the said petition challenging the maintainability of the executing case has been dismissed by the District Forum by the impugned order, as because the decree passed by it has been affirmed also by the Hon’ble National Commission.

In this State Commission it has been strongly urged that a single petition under Section 25 or 27 of the C. P. Act is not maintainable.  Section 25 of the C. P. Act deals with the power of the Executing Court to attach the properties of the JDR and/or to issue a certificate to the Collector for any amount due from any person under an order made under C. P. Act for recovery of the same from him.  Section 27 of the said Act empowers the Executing Court to exercise the power of a Judicial Magistrate of the First Class in dealing with the JDR for punishing him with a imprisonment for a term extending upto three years.  It has strongly been contended that the said two provisions of the Act deal with two distinct and separate powers that are to be exercised by the Executing Court and as such the said joint petition is not maintainable. 

We are of the clear view that the above contention of the JDR is purely misconceived.  The said petition although has been filed by mentioning both the aforesaid two provisions of the Act, it would be open for the Executing Court to proceed under either of the provisions of the said Act as would be applicable in this case.  The Executing Court is yet to proceed either under Section 25 or under Section 27 of the said Act.  It will invoke its power either under Section 25 or under Section 27 as may be necessary.  Only because two different sections of the aforesaid Act have been mentioned in the nomenclature of the execution application would not make the same as not maintainable. It is also a settled principle of law that a mere nomenclature of a petition will not decide the fate of the petition itself.  Therefore, the contention made by the JDR in this regard is not tenable. 

The plea that the decree suffers on the ground of fraud cannot also be entertained at this stage.  On perusal of the records of this case and particularly in view of the annexures made to this revisional application it appears that the practicing of fraud by the JDR has been alleged on the ground that there did not exist a written agreement for sale of the flat between the parties and the agreement if any did not specify the flat.  Lastly the decree passed for the flat in question has already been sold.  We are afraid whether all such questions can be gone into in this execution proceedings.  The District Forum upon reading of the correspondences between the parties came to the conclusion that there was agreement for sale of the flat in question between the parties.  Such finding of fact was upheld both by the State Commission and the Hon’ble National Commission.  Hence there is no scope for contending that the decree was obtained by practicing fraud.  Furthermore, the plea that the flat in question has already been sold to a third party is not in any way related to the practicing of fraud by the Decree Holder.

Therefore, the said question as raised by the JDR also does not have any merit whatsoever.   For all the aforesaid reasons the revisional application does not have any merit whatsoever.  The same is accordingly dismissed.