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EA has been filed by the respondent/complainant for execution of the order dated 27.06.2018 passed by this Commission in FA No.321 of 2012.
Learned counsel for the applicant/complainant argued that the following is the operative portion of the order dated 27.06.2018 passed in FA No.321 of 2012:-
"14. Based on the above discussion, First Appeal No.321 of 2012 is partly allowed and it is ordered that the amount as ordered by the State Commission shall be refunded with 12% p.a. interest instead of 18% p.a. interest as ordered by the State Commission. The order dated 08.02.2012 of the State Commission stands modified to this effect only and with this modification the order of the State Commission is upheld. The appellant is also directed to pay Rs.2,00,000/-(rupees two lakhs only) as cost for condoning the delay in filing the present appeal. All the payments be made within a period of 45 days from the date of this order, failing which an additional interest of 3%p.a. shall be payable by the appellant from the date of this order till actual payment. No order as to costs for this appeal."
Learned counsel for the applicant/respondent stated that this Commission has allowed the cost of Rs.2,00,000/- for condoning the delay in filing the appeal. As this is a new addition to the decree, therefore, the execution application has been filed before this Commission. Learned counsel stated that under Section 25 of the Consumer Protection Act, 1986, the following is mentioned:-
"25. Enforcement of orders of the District Forum, the State Commission or the National Commission. - (1) Where an interim order made under this Act, is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.
(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.
(3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue."
It was mentioned by the learned counsel that the executing court will be the same which has passed the order and therefore, this Commission will have jurisdiction to entertain the execution application filed by the applicant for execution of the order dated 27.06.2018 passed in FA No.321 of 2012. The learned counsel further stated that earlier, the provisions of Code of Civil Procedure, 1908 (CPC) [from the Section 37 & 38] were applicable, but after amendment in 2003, these Sections are not applicable for execution proceedings under Consumer Protection Act, 1986
Learned counsel for the applicant/respondent further referred to the judgment of Hon'ble Supreme Court in Kunhayammed and others Vs. State of Kerala and Anr. (2000) 6 SCC 359 and pointed out towards the following paras:
In S.S. Rathor Vs. State of Madhya Pradesh AIR 1990- SC 10 a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. Vs. Amritlal Bhogilal & Co. (supra) and several other decisions of this Court.
The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."
On the basis of the above judgment, learned counsel argued that there can be only one final decree which has to be executed and in the present case, the final decree is of the National Commission as per the order dated 27.06.2018 passed in FA No.321 of 2012. Hence, according to the general principle that the executing court shall be same which has passed the decree, this Commission will have the jurisdiction to entertain the present execution application.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the respondent/applicant. It is seen that Section 25 of the Consumer Protection Act 1986, which was prevailing before amendment of 2003 reads as below:-
"25. Enforcement of orders by the Forum, the State Commission or the National Commission- Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were decree or order made by a court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction,-
(a) in the case of an order against a company, the registered office of the company is situated, or
(b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution."
From the above provision, it seems that earlier the orders passed by the consumer fora were to be sent to the civil court for execution. However, after the amendment, it seems that this provision and procedure has been dispensed with and total powers have been given to the consumer fora for execution of the orders. The amendment does not show any indication that Section 37 & 38 of the CPC will not be applicable for the proceedings regarding execution under Consumer Protection Act 1986.
The reference made by the learned counsel with regard to the judgement of Hon'ble Supreme Court in Kunhayammed and others Vs. State of Kerala and Anr. (supra) only shows that the final decree will be the order passed by the highest forum, which would become final. The provisions relating to execution are mentioned in Sections 37 & 38 of the CPC and no bar is mentioned in respect of these Sections in any provisions of the Consumer Protection Act, 1986. Section 37 & 38 of CPC read as follows:-
"37. Definition of Court which passed a decree- The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
Court by which decree may be executed- A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. "
From the above provisions particularly Section 37 (a) of the CPC, it is quite clear that the execution will lie with the same forum, which has passed the original decree because the effect of the orders passed by the higher fora will only be the amendment to the original decree. Thus, it is clear that the present execution application is not maintainable before this Commission, and therefore, the same stands dismissed. The respondent/applicant will be at liberty to file the execution application before the State Commission, which has passed the original order in the main complaint case.