VIPUL AUTO SERVICE vs AMBRISH KUMAR SRIVASTAVA

HIS is a revision against order dated 29.1.1999 passed by the District Forum, Khushinagar in the Complaint Case No. 20/88.

THE facts of the case, as far as they are relevant for decision in this revision are that on 26.11.1998 a judgment was passed in Complaint Case No. 227/98. THE compliance of this judgment was not done by the opposite party and hence an execution application was moved. No objection was filed to the execution application by the opposite party inspite of notice which was sent to him. THE learned District Forum under Section 27 of the Consumer Protection Act directed each of the opposite parties to undergo simple imprisonment of one month and fine of Rs. 1,000/- each for execution of this order. A warrant was issued returnable by 20.2.1999. Aggrieved against this order, the applicant has filed the present revision. The learned Counsel for the parties have been heard. Learned Counsel for the applicant has argued that in the present case the learned District Forum could not have passed an ex-parte order without hearing the opposite parties, judgment debtors. In support of his argument, reliance is placed on the case of M/s. Vikmans & Ors. v. Rakesh Kumar, I (1992) CPJ 386, decided by State Commission, Delhi. A perusal of the judgment goes to show that under Section 27 conviction can only be done after giving a reasonable opportunity to defend a person and if any opportunity is not given then the trial is not properly held. Reference to Section 17 has also been made. In this case the following observations were made in para 5 : 3 "The proceedings under Section 27 of the Act are criminal in nature. It was the duty of the Forum to provide adequate opportunity to the appellant to defend himself. It is true that no procedure has been prescribed in the Act for trial of the cases under Section 27. However, the Forum could adopt any procedure to deal with the case provided it was fair and just for the appellant. It is well settled that if a person is being tried for an offence, which prescribes a sentence of imprisonment or fine he should be given a reasonable opportunity to defend himself. He cannot be sentenced to undergo imprisonment or pay fine without affording such an opportunity. It is also well settled that an accused cannot be convicted in absentia. Therefore it was the duty of the Forum to secure the presence of the appellant before an action could be taken against him. If his presence could not be secured by summons, t should have been secured by issuing bailable warrants. If after service of the warrants he absented himself non-bailable warrants could have been issued against him. In the present case the learned Forum did not do so. Thus, it acted illegally in convicting and sentencing the appellant. Consequently, the order of conviction is liable to be set aside."

No doubt it is true that no procedure has been prescribed in the Consumer Protection Act for proceeding in a matter where execution application is moved under Section 25 or 27 of the Consumer Protection Act. Section 25 of the Act deals with enforcement of order passed by the Forum, State Commission or the National Commission. It says that these orders are to be executed in the same manner as if it was a decree or order made by a Court in a suit pending therein and it has been lawful in the event of its inability to execute its last order to the Civil Court. Section 27 deals with the penalties which are inflicted under Consumer Protection Act. This provides that a trader or a person who fails to comply with the orders passed by the District Forum, State Commission or National Commission, shall be punishable for imprisonment which shall be not less than one month but may be extended to three years or with fine which shall not be less than Rs. 2,000/- and may extend to Rs. 10,000/-.

THUS District Forum has been given powers to execute orders passed by it in the manner laid down under Section 25 or 27 of the Act. It would be seen that the Consumer Protection Act has been enacted in order to safeguard the interest of the consumers as they had been put to disadvantageous position in the past on account of the unfair trade practices by the traders and manufacturers. It cannot also be denied as experience has shown that once a decree is obtained, it becomes very difficult to execute the same. The real fight between the plaintiff and the defendant and in the present case the complainant and the opposite party starts after claim petition is decreed and execution for enforcement of the order is filed. The judgment debtors puts so many hurdle as possible and try to delay the proceedings in order to defeat the claim of the claimant which has already been decreed. As a matter of fact the real trouble of the decree holder starts after passing of the decree. Section 25 or 27 of the Consumer Protection Act constitute independent remedy and the decree holder is to apply either under Section 25 on/ under Section 27. Decree holder can straight-way move a Forum under Section 27 of the Consumer Protection Act in order to get claim executed. It may be mentioned here that in the case of Om Prakash Bhati v. Deepu Chits (P) Ltd. & Ors., 1992 (1) CPR 671, it was held that application under Section 27 is maintainable by decree holder against a judgment debtor inspite of the fact that a remedy by way of execution is available to him under Section 25 of this Act. Tine procedure for execution of a decree has been provided in the C.P.C. When no procedure has been provided under the Consumer Protection Act or the rules framed there under, we can take assistance from the provisions given in Civil Procedure Code. The Civil Procedure Code gives exhaustive procedure where an application has been moved for execution of a decree by arrest and detenction of the judgment debtor. Order 21, Rule 30 provides for mode of execution of a decree for payment. It reads as under : "Every decree for the payment of money, including a decree for the payment of money as the alternative to some other reliefs, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both."

IN view of the provisions of this order, we find that in the case of execution of money decree, the judgment-debtor may be detained in civil imprisonment, besides other remedies available to him. It also provides that when an application for execution of a decree is made, a notice of that application has to go to the other side. This is provided under Rule 22. This rule provides-that when an application for execution is made, then the Court executing a decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. After the notice has been issued, Rule 23 of the same order provides that under Rule 22 where the person to whom the notice is issued but does not appear or does not show cause to the satisfaction of the Court, why the decree should not be executed. It also provides if an objection is filed then the objection shall be decided and thereafter an order shall be passed. IN Rule 24 it has been provided that when an order for execution of a decree is passed, a date shall be fixed before which the compliance is to be returned to this Court. Thus we find in this cited case which lays down exhaustive procedures for execution of decrees, it has been provided that a notice has to be issued to the judgment debtor and if he appears and files objection, they have to be considered and suitable order is to be passed. If he does not appear, then naturally the execution proceedings are to be proceeded ex-parte. This shows if the judgment-debtor fails to appear in response to the notice, then a warrant of arrest has to be issued directing the Officer to bring that person before the Court unless the amount which had been ordered to pay together with interest thereon etc. has been paid. Thus in view of the proceedings already laid down in the Civil Procedure Code, we do not find ourselves in agreement with the procedure laid down for execution of a decree in the case of M/s. Vikmans & Ors. v. Rakesh Kumar decided by the State Commission, Delhi (supra).

IN the present case a notice was sent to the judgment-debtor/applicant but it failed to appear in response to the notice. Thereupon ex-arte orders for execution of the order was passed by the District Forum concerned. The District Forum very specifically mentioned that no objection was filed by the judgment debtor despite the notice having been sent by the District Forum which was refused by the opposite parties. Thus the service on the judgment debtor was found sufficient and the learned District Forum had passed the order. It cannot be said that the District Forum has to secure the presence of the judgment debtor if he fails to appear in response to a notice and issue bailable warrant and if he further fails to appear then non-bailable warrant be issued. We do not find what useful purpose shall be served by issuing bailable warrants or non-bailable warrants in such cases. Therefore, it cannot be said that the judgment debtor in the present case was not given an opportunity for hearing and was convicted in absentia. If a person does not want to be defended and wants that proceedings should be decided ex-parte against him, then a Civil Court or Authority is not bound to ensure the attendence of that person. No doubt execution proceedings by arrest or detention of a judgment debtor are quasi criminal proceedings but it does not mean that the Forum is to ensure presence of the judgment debtor inspite of his unwillingness to co-operate with the District Forum. Thus the case law relied upon by the learned Counsel for the applicant is liable to be distinguished on the basis of the observations made above.

THUS we find that this revision has no force and is liable to be dismissed. However, we make it clear that if the judgment debtor made the payment of the entire amount decreed by the District Forum, then the warrant of arrest shall not be executed against them. The judgment-debtor is at liberty to tender this amount before the District Forum concerned before execution of warrant. ORDER The revision is dismissed. There will be no order as to the cost. Let copy be made available to the parties as per rules. Revision dismissed.