SRI.K. VIJAYAKUMARAN, PRESIDENT. This is a complaint seeking a direction to release Piston Rings to the complainant with costs. The averments in the complaint can be briefly summarized as follows: The complainant was the defendant in OS 318/1982 before the Sub Court, Kollam filed by the opp.party herein. The above said suit was settled out of court long back. Accordingly the opp.party released plaint ‘A’ schedule property [plant and machinery and B schedule property [Title deeds of immovable properties] therein pledged as security for availing the loan. However the opp.party have not taken any effective steps for releasing C schedule property in the above case over which the opp.party imposed a general lien. The inordinate delay in releasing the C schedule is creating huge financial burden and loss to the complainant due to the depreciating market value of the goods. The complainant sent a registered letter dated 18.9.06 to the opp.party requesting release the piston rings . Though the notice was received by the opp.party the same were not released. Therefore the complainant issued an advocate notice on 17.10.2006 seeking the release of the above piston rings. Even after receipt of the advocate notice the opp.party did not release the piston rings which amounts to deficiency in serviced on the part of the opp.party. Hence the complaint. The opp.party filed version contending interalia, that the complaint is not maintainable either in law or on facts. The complainant is not a consumer and therefore this Forum has no jurisdiction to entertain this complaint. It is true that the opp.party herein has filed OS No.318/1982 before the Sub Court, Kollam in which the complainant herein was the 2nd defendant. The suit was decreed on 28.2.1987. In the said suit A schedule was the Plant and machinery, B schedule the immovable properties and C schedule was movables Piston Rings., The Decree Holder put the decree in execution by filing EP 19/1990 . In execution of the decree the Sub court appointed a Commissioner as per order in EA No.37/90 . The commissioner took possession of C schedule property and auction of the same in public on 24.2.1990 for Rs.5,50,000/- and the sale proceeds were remitted with the plaintiff and the court directed the complainant to pay a sum of Rs. 27,500/- out of the sale procedure to the Commissioner The judgement debtor filed objections to the Receivers report as per EA No.358/90 praying not to accept the said reports. The said EA was dismissed by the Court on 26.11.92 against which the Judgement debtor filed CRP No.106/92 before the Hon’ble High Court, but the CRP also ended in dismissal on 5.11.1993.. The judgement debtors there after filed an application on 18.1.1994 for setting aside the sale but the same was also not successful. While the execution proceedings were in progress by virtue of section 31 of the Recovery of Debts due to Financial Institution Act 1993, the EP was transferred to the Debt Recovery Tribunal, Chennai where it was renumbered as TA.No.349/1998. While the matter was pending before the Hon’ble Tribunal the judgement debtors approached the Bank and expressed their willingness to settled the matter. As per the compromise of settlement a sum of Rs.1,47,73,000/- was deposited in Bank and the matter was fully closed in February, 2000.C Schedule movables were sold by the Commissioner appointed by the Court and the sale proceeds were brought to Court. As per the order of the court the said proceeds were remitted to the bank and appropriated towards the decree amount after deducting the remuneration of the Commissioner. The judgement debtors in acceptance of the said sale and adjustment of the proceeds towards decree amount compromised the matter and paid the balance amount under the settlement. Hence it is meaningless for the complainant to content that no effective steps were taken for releasing C schedule movables. C schedule movables are not in existence as those were already sold under orders of the court. Hence complainant is not entitled for release of such goods. There is no negligence or deficiency in service on the part of the opp.party. Hence opp.party prays to dismiss the complaint. Points that would arise for consideration are: 1. Whether the complaint is maintainable 2. Whether there is deficiency in service on the part of the opp.party 3. Reliefs and costs. For the complainant PW.1 is examined. Ext. P1 to P6 are marked. No oral evidenced is adduced by the opp.party. Ext. D1 is marked POINTS As a matter of fact there is no dispute that the opp.party herein has filed OS 318/1982 before the Sub Court, Kollam against the complainant herein and certain others and that the suit was decreed. The decree holder has filed execution petition before the Sub Court as EP.No.19/100 and in the EP plaint C schedule therein were sold public auction by the Receiver appointed by the execution court for a sum of Rs.5,50,000/- and the sale proceeds remitted to the Bank after deducting 27,500/- being the remuneration of the Receiver. The complainant herein filed objection against the receiver’s report and sought to set aside the sale but the petition was dismissed on 26.11.92 against which the complainant herein has filed CRP No.106/92 before the High Court and the CRP was also dismissed on 5.11.93. It is also not disputed that the matter was finally settled out of the court by the parties. The contention of the complainant is that in pursuant to the settlement plaint A and B schedule therein were released by the opp.party herein to the complainant but plaint C schedule were not so far released. It is to be pointed out that the terms of the settlement was not produced before this Forum, with the result that regarding C schedule one has to grope into the darkness. As pointed out earlier the plaint C schedule was sold in public auction in pursuant in the order of the Sub Court, Kollam and the objections filed by the complainant herein who was one of the Judgement Debtors therein was dismissed. Revision filed by the JD therein before the Hon’ble High Court was also dismissed. Since the terms of settlement are not produced before the Forum. It is not possible to ascertain what was the stipulation in respect of plaint [c] schedule. When a property is sold in public auction by an order of a court and the application seeking to set aside the sale was dismissed by the executing court and confirmed by the Hon’ble High Court, the complainant can seek release of such an article only if the sale has been set aside. There is no material, worth believable to show that the sale has been set aside by any competent Forum. The burden to establish that the sale of C schedule has been set aside and C schedule was also included in the settlement is on the complaint which he failed to discharge . In these circumstances no negligence or deficiency in service can be attributed to the opp.party. The complainant is seeking a direction to the opp.party to release Piston Rings to the complainant with costs of the proceedings. The opp.parties would contend that there is no consumer dispute in this case . As pointed out earlier, the complainant is seeking a direction to the opp.party to release certain articles which were sold in public auction as per an order of a competent court and no material was produced to show that that court sale was set-aside by any court. Therefore it cannot be said that there is any consumer dispute between the parties and any deficiency in service on the part of the opp.party. In these circumstances are of the view that the complaint is not maintainable. The complainant failed to establish that there is deficiency in service on the part of the opp.party. Point found accordingly. In the result the complaint fails and the same is here by dismissed. No costs. Dated this the 30th day of November, 2009. I N D E X List of witnesses for the complainant PW.1. – F.V. Albin List of documents for the complainant P1,. - Photocopy of letter dated 18.9.06 P2. – Postal receipt P3. – Copy of Advocate notice P4. – Postal receipt dated 17.10.2006 P5. – Partnership deed P6. – Partnership deed List of witness for the opp.party :NIL List of documents for the complainant D1. – Order in CRP No.106 of 1993_I | 
