Arup Chatterjee vs Sri Jayanta Ray & Anr
2023 Latest Caselaw 4262 Cal

17.07.2023

Item no.15 CP C.O. 956 of 2020

Arup Chatterjee Vs.

Sri Jayanta Ray & anr.

Mr. Tanmoy Mukherjee Mr. Atish Ghosh Mr. Arindam Chandra Mr. Tanmoy Sett Ms. Antara Dey ......for the petitioner.

Mr. Pratip Mukherjee Mr. Diptomoy Talukder Mr. Swapan Bhattacharya Ms. C. Chatterjee Mr. Abhiraj Tarafdar

...for the opposite party.

Mr. S. Pal Choudhuri Ms. Diya Nandi

....for the opposite party no. 2.

The revisional application has been filed by the

opposite party no. 1 of the complaint case, being

aggrieved by an order passed in First Appeal being

A/32/2017 dated December 16, 2019, passed by the

learned State Consumer Disputes Redressal

Commission.

The appeal arose out of an order dated

September 20, 2016, passed by the learned District

Consumer Disputes Redressal Forum in Execution

Case No. EA/190/2013. The learned District Forum,

upon finding that the judgment debtor had failed to

comply with the directions, had issued a warrant of

arrest. The said order was challenged by filing an

appeal being A/32/2017. The learned trial judge

refused pass order, on the merits of the execution, on

the ground that the executing court could not go

beyond the decree.

Mr. Tanmoy Mukherjee, learned advocate

appearing on behalf of the petitioner, submits that

neither the District Forum nor the State Commission

had the jurisdiction with regard to the subject matter

of the complaint case, inasmuch as, transfer between

two individuals of a previously constructed house or

a flat would not attract the provisions of the

Consumer Protection Act. The seller would not be a

service provider and the buyer would not be a

consumer. He also relies on the decision of the

Hon'ble Apex Court in the matter of Sarup Singh &

anr. Vs. Union of India & anr., reported in (2011) 11

SCC 198, in support of the contention that when a

decree was a nullity, the said point could be raised

even at the stage of execution or in collateral

proceedings.

Mr. Pratip Mukherjee, learned advocate for the

complainant, submits that the petitioner did not

challenge the original order giving rise to the

execution case. Thus, objection as to the execution of

the order passed should not be entertained.

Having considered the order impugned and the

rival contentions of the parties, this court finds that

the learned Commission did not take into account

the contentions of the petitioner, but mechanically

rejected the appeal on the ground that the executing

court could not go behind the decree.

The issue with regard to jurisdiction of the

District Consumer Forum and the question of non-

applicability of the Consumer Protection Act, was not

taken into consideration by the commissioner. The

decisions of the Hon'ble Apex Court laying down the

principle that the executing court could not go

behind the decree was relied upon, but the point as

to whether the executing court could pass necessary

orders for execution when the decree was challenged

on the ground of nullity, was not discussed.

Under such circumstances, the order

impugned is set aside.

The issuance of warrant of arrest which was

originally without jurisdiction, is also set aside. The

matter is remanded to the learned Commission for a

rehearing of the appeal filed under Section 17(1)(b)

read with Section 27A. All points raised therein shall

be considered afresh, and in accordance with law.

It is made clear that the said appeal shall be

disposed of expeditiously. All objections with regard

to the executability of the decree shall be decided in

the said proceeding.

The revisional application is accordingly

disposed of.

There shall be no order as to costs.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)