HON’BLE MR. KAMAL DE PRESIDING MEMBER

Order No. 06

Date : 07.02.2019

Appellant is present in person and files written notes of argument.

None appears on behalf of the OP.

The Appal is taken up for hearing.

Heard. Considered.

The instant appeal relates to an application U/Sec. 27 – A of C.P. Act arising out of theorder dated 08.05.2018 passed by the Hon’ble D.C.D.R.F., Birbhum in C.F. Execution Case No. EA/06/2018 in relation to C.C. Case No. 139 of 2015.

In filing the Appeal, it is stated that the Ld. Forum below committed material irregularity in passing the impugned order dated 08.05.2018.

It is alleged that the Ld. Forum below refused to pay any further interest for the period of unlawful retention of the money by the respondent.

It is also alleged that the Ld. Forum below did not pass any order of litigation cost in the Execution Case.

It is alleged that the Ld. Forum believed the version of the OP that the OPs issued a cheque within stipulated time without any basis.

It is alleged that the Ld. Forum below failed to consider the fact that the order of the Ld. Forum in C.C. Case No. 139 of 2015 has not yet been complied within the stipulated time of 30 days. It is alleged that the order of the Ld. Forum dated 08.05.2017 has not yet been executed and accordingly he is entitled to litigation cost and penal cost for delayed payment of decretal amount.

The appellant has prayed for setting aside the order of the Ld. Forum below dated 08.05.2018 in C.F. Execution Case No. 06 of 2018.

We have perused the documents on record.

It appears that the appellant/complainant filed C.C. Case No. 139 of 2015 against the OP/Bank claiming for further interest in respect of his two matured TDS.

Ld. Forum below vide Order dated 31.05.2017 allowed the case on contest in part and directed OP 1 to pay Rs. 4221/- (i.e. Rs. 3092/- + Rs. 1129/-) as interest, Rs. 2000/- for litigation cost and Rs. 2000/- for harassment for the petitioner. The appellant has alleged that the OP/Bank did not comply with the order of the Ld. Forum and accordingly he filed the Execution Case being No. EA/6/18 for execution of the decree/award of the Ld. Forum. OP/Bank also contested in the Execution Case and stated that the OP/Bank have complied the order of the Ld. Forum and issued a cheque amounting to Rs. 8221/- in favour of the complainant. But he refused to receive the sum and lastly OP/Bank deposited Rs. 8221/- in the savings bank account of the complainant/decree holder.

Ld. Forum below after hearing both parties disposed of the Execution Case on contest observing that the Ld. Forum cannot be used to extract money for unjust, enrichment and was also pleased to drop the case on full satisfaction as OP/Bank complied with the order of the Ld. Forum and credited the decretal amount in the Bank Account of the complainant on 21.02.2018.

Being aggrieved by and dissatisfied with the impugned order in Execution Case dated 08.05.2018 appellant has preferred the instant Appeal.

It appears from the certified copy of the Cheque dated 23.06.2017, that a Cheque bearing No. 491405 amounting to Rs. 8221/- was issued by OP/Bank in favour of the complainant on 23.06.2017 i.e. within 30 days of the final order.

It was alleged by the OP/Bank before Ld. Forum that the complainant refused to receive the sum and lastly OP/Bank deposited Rs. 8221/- in the Savings Bank Account of the complainant/decree holder.

We find that the decretal amount was deposited in the Bank Account of the complainant on 21.02.2018.

It also appears from the certified copy of the Cheque dated 23.06.2017 that a Bank Cheque being No. 491405 amounting of Rs. 8221/- was issued by OP/J.D.R. in favour of the complainant on 23.06.2017. There is document VS oath on the controversy in between the parties. It is alleged by the appellant that no Cheque was issued by the OP Bank or mere issuing of Cheque and/or keeping it in the custody of the respondent never proves that any effort was made from the part of the respondent to disburse Cheque to the appellant.

We are afraid that the appellant failed to prove that no Cheque was issued in favour of  the appellant by the J.D.R. On the contrary, certified copy of the Cheque dated 23.06.2017 shows that a Cheque bearing No. 491405 amounting to Rs. 8221/- was issued by the J.D.R. Bank on 23.06.2017 in favour of the complainant.

Be that as it may, we find that the Ld. Forum disposed the case on 31.05.2017 and the operating portion of the final order is as follows :

“The OP 1 is directed to pay Rs. 4221/- (i.e. 3092 + Rs. 1129/-) as interest, Rs. 2000/- as litigation cost and Rs. 2000/- for harassment to the petitioner. The payment shall be made to the petitioner within one month from the date of this order failing which the petitioner shall be at liberty to execute the order as per Law and procedure.”

There is no speaking order that the appellant/decree holder would be entitled to further penalty or penal interest in case of non-compliance of the order of the Ld. Forum within the stipulated period of one month. The appellant has not preferred any Appeal against the final order passed in CC Case No. 139 of 2015 claiming provisio clause of the judgement for imposition of penal interest in case of non-compliance of the impugned judgement.

It is a truism of Law that an Executing Court cannot go beyond the decree. Appellant has not preferred any Appeal against the final order in CC Case No. 139 of 2015 claiming further interest in respect of the awarded amount if not paid within 30 days. The final order in CC Case No. 139 of 2015 stands firm and not challenged accordingly.

It is a settled law that an Executing Court cannot go beyond the decree and it must take the decree as it is and execute the same.

We are afraid the appellant in filing the instant Appal cannot claim extra or excess money beyond the awarded amount, more so, when there is no mention in the final order that the complainant decree holder is entitled to get any further interest if the amount awarded was not paid within 30 days.

We do not find any material irregularity, impropriety or illegally in the impugned order being No. 5 dated 08.05.2018 in the CF Execution Case No. EA/06/2018 arising out of C.C. Case No. 139 of 2015, passed by the Ld. Forum below.

We do not find anything to interfere into the impugned judgment in execution case passed by the Ld. Forum below.

Hence,

                                                ORDERED

The instant Appal being No. RBR/A/06/2018 is dismissed exparte on merit.

No order as to cost.