JOSE PHILIP vs SATISH NAMBISAN

THIS Revision Petition is filed by the degree holder in O.P. No. 455/93 on the file of the District Forum, Alappuzha. The complainant filed an Execution Petition No. 122/94 and an objection was filed by the opposite party stating that he had no means to pay the amount ordered. The complainant filed an affidavit stating that the opposite party has got sufficient means to pay the amount and the non-compliance of the order is willful and deliberate.

THE District Forum acting upon the affidavit filed by the complainant stating that the opposite party has means passed an order stating that the non-compliance is willful and deliberate to avoid payment and ordered to issue a warrant for the arrest of the judgment-debtor. The matter was taken before this Commission in R.P. 36/95. We held that the order issued by District Forum does not appear to be one passed under Section 27 of the Consumer Protection Act. We further held that under Section 25, the order has to be executed as if it were a decree or order by a Court in a suit pending therein and while directing for arrest it is necessary to make an enquiry contemplated under Section 51 and Order 21, Rules 37 to 40, CPC. In that view we set aside the order of the District Forum and remit back the matter to the District Forum for fresh disposal after making an enquiry as contemplated under Section 51 and Order XXI, Rules 37 to 40, CPC. We also made it clear nothing stated in the above decision would affect the powers of the District Forum to pass orders under Section 27 of the Consumer Protection Act.

It appears after remand the decree-holder moved an application to execute the order by resorting to Section 27 of the Consumer Protection Act, but that was dismissed by the District Forum holding that the complainant has burden to prove that opposite party has means to pay the amount and that has not been discharged by the complainant.

IN our Revision Petition No. 36/95 which is reported in 1996 (2) CPR 232, we have specifically stated that the principle laid down therein applies only to proceedings under Section 25 and not under Section 27 of the Consumer Protection Act. Sections 25 and 27 are two independent sections and it would open to the complainant to request the Executing Court to initiate proceedings either under Section 25 or under Section 27. The provisions of the Civil Procedure Code are not applicable if the proceedings are taken under Section 27 since the Court was not executing the order as if it were the decree or order by a Court in a suit. IN the circumstances we set aside the order of the District Forum and remit back the matter to the District Forum to consider whether an order can be passed under Section 27 as required by the complainant. We direct the District Forum to dispose of the matter as expeditiously as possible. Matter remanded. _______________