Dtd.04.09.2023                                            A/1533/2023

O R D E R

           BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.

1.    This is an appeal filed U/s.73 of CPA 2019 by Jdr.1 & 2/Appellants in EA/14/2013 arising out of the award passed in CC/16/2007 on the file of Bidar District Commission.
2. This appeal is set for hearing on admission. Commission examined impugned order, grounds of appeal, appeal papers and heard the learned counsel for Jdrs.1 & 2/Appellants on IA filed U/s.5 of limitation Act to condone delay of 47 days is hereby allowed and condoned for the reasons sworn in by deponent in the enclosed affidavit and   proceed to decide on the appeal.
3. This appeal is filed U/s.73 of CPA 2019 to set aside the order dtd.06.06.2023 passed in EA/14/2023.
4. Let us examine the said order which reads as ‘call on for the same by 05.07.2023 signed on 06.06.2023.’ In fact on 06.06.2023 no order is passed and the matter is set for taking steps. Learned counsel for the Appellants submit that IA filed U/s.151 of CPC dtd.06.12.2022 by Jdrs came to be decided on 16.05.2023, which we have to treat it the impugned order considering the procedure to be applied to these matters under consumer laws. In other words to meet ends of justice, Commission has to treat the order dtd.16.05.2023 is impugned and not the order dtd.06.06.2023 sought in the appeal.
5. Let us examine the impugned order, wherein  Forum stated in CC/16/2007 on 23.12.2008 has not been challenged in appeal by Jdrs and it is on this ground, held Jdrs are not entitle to produce any documents as evidence before Executing Commission, thereby recorded negative findings and as a result rejected the IA, which in our view is not correct and to find support in our view it would be appropriate to refer here a decision of this Commission passed in RP/25/2020 dtd.09.06.2021, which was followed by the decision of the Hon’ble Apex Court of India, wherein held in exceptional cases Executing Court can exercise discretion, if it warrants to decide the case in accordance with law. In other words, executing commission could have permitted the Jdrs to placing FD ledger extract in respect of account number.71 maintained in the name of Mr.Venkat Rao S/o Bheemrao and could have examined while in conducting of enquiry and in our view by permitting to place such ledger extract no legal harm would cause to the Dhrs, however this legal implication was not considered by the Commission below. The executing commission has to decide whether FD ledgers could be admissible in evidence and if admissible also to decide on the impact on the recovery? Whether Jdrs are entitled for any deduction or they are inadmissible which cannot bearing the recovery proceedings under award in question. In other words production of documents is one thing and its admissibility is another thing which has to be decide under the consumer laws itself.  In such view of the matter, reasons recorded as OPs.1 & 2/Jdrs failed to prefer an appeal on the award passed in CC/16/2007 dtd.23.12.2008 alone cannot be a ground to reject the document produced along with the I.A. in question. We further observe, if some proof is placed on record to show receipt of any amount from the FD account of Dhrs subsequent to award or earlier if were not produced, during the course of enquiry, while in execution of the award in EA/14/2013 no bar to permit the party to produce.
6. In the above such view of the matter, to avoid further delay dispensed with issuance of appeal notice to the respondent/Dhr proceed to allow the appeal with no order as to cost and    permitted Jdrs/Appellants to produce FD ledger extract dtd.12.09.2002 and in the result order dtd.16.05.2023 and 06.06.2023 respectively are set-aside. The Executing Commission is directed to afford opportunity also to the Dhrs to rebut the same.   

7. Notify copy of this Order to the District Commission and parties.

Lady Member               Judicial Member                     President              

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