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Judgment
Prem Narain, Presiding Member
This Appeal Execution has been filed by Savita M. Jain & Anr. challenging the order dated 26.03.2019 passed by the State Commission in Execution application No.16/23.
Brief facts of the case are that the complainant/respondent No.1 had filed a consumer complaint before the State Commission and the same was allowed vide order dated 17.11.2014 as under:-
"Opponent is directed to execute an agreement of sale in respect of another shop of the same size within the vicinity of the same location and to hand over possession of the same to the complainant within a period of six months from the date of this order by appropriating Rs.5 Lakhs paid by the complainant as booking amount towards total consideration and accepting Rs.47 Lakhs as remaining consideration from the complainant by giving intimation about readiness of the shop and the agreement to be executed in favour of the complainant."
The opposite parties preferred first appeal bearing No.106 of 2015 before the National Commission and this Commission vide its order dated 11.03.2016 modified the order of the State Commission as under:-
"25. However, it must be borne in mind that a sum of Rs.47.00 Lakhs was not paid by the complainant since 30.04.2000. We hereby modify the order of the State Commission and direct that, in addition to the order of the State Commission, the complainant will also pay interest at the rate of 10% p.a., from 30.04.2000, till the date of this order, in both the eventualities, specified in the order of State Commission."
As the possession was not offered within a period of six months, the complainant filed execution application 16/23 before the State Commission. The State Commission vide its order dated 05.10.2018 passed the following order:-
"We make it clear that for the delayed period with effect from date of final order, the amount which is deposited on 18/01/2017 ought to have been withdrawn by the opponents so as to comply with their obligation as per final order to deliver possession of the shop which is subject matter of consumer dispute. As long as opponents not delivering possession of shop to the complainant, they shall pay interest @10% p.a. on the amount withdrawn by them or made payable to them with effect from 18/01/2017. Meanwhile, accused shall produce certificate of completion of building duly certified by the Architect/Structural Engineer/Surveyor as also copy of application made to the Municipal Corporation indicating that occupation permission is sought for by the opponents pursuant to the final order. This compliance shall be made before the next date, failing which we will have to take coercive measures."
The complainant deposited Rs.1,21,56,027/- on 18.01.2017 with the State Commission and then the State Commission again passed an order dated 26.03.2019. The appellants are aggrieved by the fact that their application dated 08.02.2017 for deletion of their names has not been considered by the State Commission inspite of the order dated 23.08.2018 of this Commission, passed in AE No.62 of 2017 & AE 63 of 2017which reads as under:-
"It may be noted that this Commission has no intention to interfere in any manner in the jurisdiction or power of the State Commission in the (lawful)conduct of execution proceedings before it. The only request to the State Commission is for expeditious hearing and decision on a prayer for continued exemption / discharge from personal appearance of the appellant - accused in the execution proceedings before it. It goes without saying that the State Commission will decide the prayer on merit, in its wisdom, on the facts and the law."
Learned counsel for the appellants further stated that the State Commission has not yet decided the application and has passed the impugned order wherein the direction has been given to all the accused to appear on the next date of hearing. This Commission had given direction to the State Commission to decide the application for deletion of the names from the array of the parties or exemption from personal appearance in the execution proceedings. The State Commission should have decided the application of the appellants, therefore, the impugned order may be set aside qua the appellants herein and the appellants should be exempted from appearing before the State Commission and the names should also be deleted from the array of the parties.
Learned counsel for the appellants further stated that the State Commission has mentioned this aspect in its order dated 05.10.2018, however, has not given any finding on the application filed by the appellants.
On the other hand, learned counsel for the complainant stated that the State Commission has considered the application moved by the appellants and has passed the order dated 05.10.2018. At the end of this order the following is mentioned:-
"There is no question of discharge of any accused till final order is complied with. Bail bond of the accused will be continued. Matter stands adjourned to 03/12/2018."
Thus, this is wrong to say that the application of the appellants has not been considered. Learned counsel for the complainant further argued that the appellants have gone up to the Hon'ble Supreme Court, however, no relief was granted to them and they continued as opposite parties, therefore, in the execution application, there can be no question for deleting their names.
I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. When the order dated 05.10.2018 was passed all the accused were represented before the State Commission and they argued the matter. After hearing the arguments, learned State Commission has finally passed the order that there is no question of discharge of any accused till final order is complied with. A specific question was asked to the learned counsel for the appellants whether any execution application was moved by any other accused before the State Commission. Though there was no clear reply, learned counsel for the appellants further stated that none of the parties informed that there was any other application for deleting the name of the accused from the array of the parties. If there was only application of the appellants before the State Commission and the State Commission passes an order that no discharge will be allowed till final compliance is made, this only means that the State Commission has considered the application of the appellants, otherwise there was no occasion for the State Commission to pass this order. This contention is supported by the fact that in the order dated 05.10.2018 the State Commission has discussed the contents of this application at the beginning of this order.
Thus, the last three lines of the order of the State Commission are to be seen in the context of the body of the judgment, which mentions the contentions raised in the application filed by the appellants before the State Commission. In fact, the order of this Commission dated 23.08.2016 clearly states that this is a prerogative of the State Commission to delete or not to delete any accused from the array of the parties. The State Commission has taken a view that no discharge of any accused can be ordered before the final compliance is made. Thus, the request of the appellants has clearly been rejected by the State Commission. The appellants have not filed any appeal against the order dated 05.10.2018 before this Commission whereby the State Commission has ordered that no discharge will be made of any accused till the final compliance.
Now, the appeal against the order dated 05.10.2018 cannot be filed because first of all, it will be barred by limitation and secondly a view in the matter has already been expressed by this Commission in the present appeal, therefore, any appeal being filed by the appellants against the order dated 05.10.2018 shall be infructuous.
Based on the above discussion, I do not find any merit in the Appeal Execution No.43 of 2019. Accordingly, the same is dismissed.