Maya Devi Mukherjee (Since Deceased) & Anr vs Monoranjan Basak

We have heard the learned counsel for the petitioners and have perused the impugned order dated 30-01-2018 passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as 'the State Commission').

The facts which are not in dispute are that the Complaint Case No.CC/124/2009 was allowed on contest on 20-08-2010. The opposite parties in the complaint were directed to execute and register the deed of conveyance, to deliver the khas possession of the flat in favour of the complainant and to handover the completion certificate within one month from the date of the order.

The order dated 20-08-2010 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat (hereinafter referred to as 'the District Forum') was challenged by the petitioners by filing an appeal before the State Commission being FA No.546 2010 which was dismissed on 11-01-2013. In the said order, the State Commission has taken note of the fact that one of the respondents, namely, respondent No.1 had expired, but the legal heirs have been duly impleaded and therefore there was no illegality. The relevant portion of the said order of the State Commission is reproduced below:

"Much has been agitated on behalf of the appellant that prior to delivery of the judgment by the learned District Forum, the OP No.1/Respondent No.1 has expired and an order against a dead person is not at all tenable. But, here, in the instant case, we find that as soon as the matter was informed, the legal heirs of the Respondent No.2 has been duly impleaded in the Memo of Appeal and if that be the position, we do not find that there is any flaw in the impugned judgment for non-impleadment of the legal heirs of the OP No.1."

The order dated 11-01-2013 was challenged by the petitioners by filing a Revision Petition No.668 of 2013 before the National Commission which was also dismissed with the observation that the revision is devoid of any merit. The petitioners preferred a Special Leave Petition before the Hon'ble Apex Court being SLP (C) No.28910 of 2013 which was also dismissed. From the aforesaid facts, it is absolutely clear that the main order of the District Forum had attained finality. Thereafter, the complainant who was the decree holder put the same into execution. Initially, a warrant of arrest was issued by the executing forum on 17-11-2014. An appeal was preferred by the petitioners herein being Appeal No.A/1313/2014 before the State Commission which was dismissed on 28-04-2016 with the following observation:

"Actually, this Appellant acted as the constituted Attorney of the said deceased and so named in the petition of the complaint. In such perspective, there is no merit in the appeal here. The intention of the appellant is simply bad only to delay in complying the final order. There is no question of biasness by the learned District Forum as can be seen fromthe order No.17 dated 02-09-2014 in EA/32/2013, where the W/A against the Jdr. was once kept in abeyance. As there is no merit in the appeal, the same be dismissed with cost.

As the compliance of the order was not made by the Jdr./Appellant, the issue of warrant of arrest against it has been made by the learned District Forum by the impugned order, which is just and proper in the facts and circumstances of the case. The appeal being without merit, impugned order is affirmed. Appeal is dismissed."

After the appeal was dismissed, the District Forum had issued an order on 17-06-2016 issuing warrant of arrest against the judgment debtor fixing 27-09-2016. The said order was challenged again by the petitioners herein before the State Commission. The State Commission has dismissed the appeal. The contention of the learned counsel for the petitioners is that the main order passed by the District Forum is null and void as it was passed against a dead person and, therefore, it cannot be executed. This submission is wholly misconceived. The factum of the death of respondent No.1 was taken up in appeal before the State Commission by the petitioners and, thereafter, to the National Commission and also in a Special Leave Petition preferred before the Hon'ble Supreme Court, however, in all the three forums/courts, the petitioner was unsuccessful. It is, therefore, not open to the petitioner to contend that the decree having passed against a dead person cannot be executed.

On a query being made as to whether the petitioner is prepared to comply with the order passed by the District Forum in the main complaint which has attained finality, the learned counsel did not give any positive reply. We are, therefore, of the considered opinion that the petitioner is only interested in delaying the matter and not complying with the order passed by the District Forum which has attained finality upto the level of Supreme Court.

We, therefore, do not find any good ground to interfere with the well reasoned order of the State Commission.

The revision petition fails and the same is dismissed in limine.