Consumer Forum Cannot Review, Set Aside, Stay, or Change Its Own Order
Thecourt•oflawacro••theworldmake•omeamazingdeci•ion•thatoughttobemadebythe people. ~ Anonymou•
It happen• quite often. Many individual• and organi•ation• reach con•umer forum• with a reque•t or an appeal to review, take back, revi•e or put a •tay on it• order. Such appeal• are generally backed with many rea•on•, excu•e• and ju•tification•, and •ometime• even contradictory deci•ion• or judgement• of higher court•. In order to under•tand how con•umer court• re•pond, we vi•ited a few ca•e• decided in the recent pa•t and found out that a con•umer forum could neither review nor change it• own order, nor could it hold back it• execution in any •ituation. For example, if a forum court make• a formal verdict a•king a defendant to pay X amount in compen•ation, the forum cannot take back or review it• order. The forum al•o doe• not re•erve any power to put on hold or i••ue a •tay order on the execution of it• order. Not ju•t thi•, the defendant too cannot go to the •ame forum with a review reque•t. Hence, if a verdict ha• been made, the defending party will have to pay the X amount or appeal again•t it at a forum of a higher level.
The matter of Kamlesh Aggarwal versus Narain Singh Dabbas and Others is an exemplary case that started at the district forum and travelled up to the national forum, before finally getting settled at the Supreme Court.
Kamlesh Aggarwal filed a case before the Ghaziabad District Consumer Disputes Redressal Forum against Navchetna Sahkari Awas Samiti Ltd (referred to as Samiti) for not allotting and registering a plot in her name as committed. The complainant stated that the Samiti, through a random resolution, had cancelled her Samiti membership due to default in payment by her. This cancellation also resulted in non-allotment of the plot.
The District Forum, after conducting an enquiry, accepted the complaint and directed Navchetna Sahkari Awas Samiti to allot the said plot in her favour and also to register the same in her name within three months from the date of the order. Since there was no appeal filed against the order, Kamlesh Aggarwal filed an execution petition before the District Forum to execute the order and requested it to punish the respondents under sections 25 and 27 of the Act.
However, a strange twist in the case appeared just before the order could be executed. A person named Gulab Singh filed an application for impleadment before the District Forum, stating that he was already in possession of the plot in question. The plot was allotted to him by Navchetna Sahkari Awas Samiti, who were defendants in the case.
Singh stated that a civil suit filed by him on the same matter was pending in the civil court. Looking into this appeal, the District Forum vide its order in 2006 held that its earlier order became null and void and stated that the complainant should approach the civil court. Only if Gulab Singh’s suit was rejected by the civil court the execution proceedings could be heard by the District Forum.
Aggrieved, Kamlesh Aggarwal approached the State Consumer Disputes Redressal Commission, Lucknow. The State Commission, in 2007, held that there was no option open to the District Forum to review the ‘same matter’ on any merit and directed the latter to proceed afresh with the execution proceedings on its earlier order.
The defendants reached the National Commission, which stood by the State Commission’s order. The matter then reached the Supreme Court. There, a well-thought-out verdict was given that clearly stated the following:
1. Consumer forum has no power to review its own order or set aside an order passed by it. Order so passed cannot be declared null and void by the same district forum.
2. The order passed by the district forum in favour of the complainant was not challenged by the opposite party and hence had finality under Section 24 of the Act. Thus, the order cannot be made nonexecutable on technical grounds.
3. The execution of the decree in the aforesaid terms is permissible in law in view of the provisions of Section 13 (4), (6) and (7) of the Act, as the provisions of Order XXI read with Rule 32 of Code of Civil Procedure are applicable to the district forum, requiring it to follow the procedure for execution of the order passed by it.
4. In addition to the above, an alternative remedy is also available to the appellant to take penal action against the concerned officers of Navchetna Sahkari Awas Samiti, under Section 27 of the Act. In the present case, it was clear that some mischief had been played by the officers concerned.
Finally, after a struggle of about eight years, the Supreme Court’s order relieved Kamlesh Aggarwal of her miseries. She filed the application before District Forum for execution of its order of 2003. In May 2010, the District Forum allowed the execution petition directing for compliance with its 2003 order. It further directed the Samiti to provide an alternate plot to the appellant, as replacement for the plot in question. In case of non-availability of plot, the Samiti would have to pay the amount as compensation to original complainant Kamlesh Aggarwal, at the current rate equivalent to the area of the plot in question.
The forum also observed that apart from initiating proceedings under Section 27 of the Act, the complainant could also invoke the provisions of Code of Civil Procedure, 1908, under Order XXI read with Rule 32, for seeking direction to the respondents to get sale deed in respect of the plot in question.
Circumstances under which Consumer Court Order Can Be Stayed
Section 24 of Consumer Protection Act talks about the finality of the order – once the order is final, the consumer has a right to get it executed. The question has been raised time and again as to under what circumstances the execution of consumer court order can be stayed.
The National Commission had discussed this issue in the matter of Shreenath Corporation & Others versus Nilkamal V Patel & Others, referring to sections 24, 25 and 27 of the Act.
Section 24 confirms that ‘every order of a district forum, the state commission or national commission shall, if no appeal has been preferred against such order under the provision of this Act, be final.’ This section does not mention any stay or admission of the appeal. Here, the word ‘preferred’ requires thorough
interpretation and discussion.
In the case of Shreenath Corporation, the National Commission relied upon a number of judgements pronounced by the apex court and explained in its judgement in August 2015 that ‘if a person against whom an order is passed by the district forum, state commission or the National Commission as the case may be, fails or omits to comply with the order, he can be proceeded against under Section 27 of the Act even if he has filed an appeal against the order. Only if the said order has been stayed by the superior forum, the forum can hold execution.’
The basis of the above clarification by the National Commission was primarily the 2005 case of Atmaram Properties versus Federal Motors, where Supreme Court had held thus:
‘There was no bar against initiation of proceedings under Section 27 of the Act merely on account of an appeal having been preferred by the aggrieved party. A prayer for grant of stay of proceedings or on execution of order has to be made specifically to the appellate court and court has discretion to grant an order of stay or refuse. Merely preferring an appeal does not operate as stay on the decree nor on the proceedings of the court. Further, all courts must take note that even if an execution of an order is “stayed”, its existence is not wiped.’
Notes for Consumers When can a consumer file execution petition?
Consumer forum sends certified copy of the order after the order is issued. Complainant has to wait for 30 days from the date he receives a certified copy of the order. Consumer may write to/contact the other party for compliance with the order even before 30 days. Consumer can file an execution petition only if order is not complied with after 30 days’ expiry.
What does the court do after receiving execution petition?
Court is to send notice to the opposite party for appearance before the court. If notice is not served, it is sent again. The court also allows the complainant to serve the same personally (the process is called dasti in court jargon). No warrants can be issued until the notice is served to the complainant. Notice can be served through publication (in newspapers) if it cannot be served by post or dasti.
How are the warrants issued?
Once a notice is served but opposite party fails to appear, a bailable warrant can be issued for non-appearance. The warrant is then sent to police for executing arrest if bail has not been obtained. Non-bailable warrant can be issued when opposite party does not appear after receiving bailable warrant. Non-bailable warrant, too, is served through police.
When is a person declared to be a proclaimed offender?
• When police fails to arrest the culprit (as s/ he may be evading arrest) after non-bailable warrant has been issued, the person is declared to be a proclaimed offender and can be arrested at any place in the country by the police. There is also a provision of attaching and selling the property of proclaimed offenders for recovery of the decretal amount.
What is the certificate for recovery?
Complainant also has the option to get a certificate from the forum for revenue department, for getting the recovery done from the judgement debtor in a manner that the government’s revenue is recovered.
Are there limitations for filing execution petition?
There is no time limit provided specifically in the Act but the National Commission has made certain orders holding that court will have the discretion to decide whether execution petition can be entertained if filed too late.
Can the court refuse to admit execution petition?
There is a time limit for destroying the old record and this varies from court to court as per their hierarchy. If the petition is filed after the lapse of the set period, the court may refuse to accept the same. In some cases, filing execution petition after years serves no purpose depending upon the nature of order and circumstances of the case at the time the order was passed.