SRI SHYAMAL KUMAR GHOSH, MEMBER
The instant appeal under section 73 of the Consumer Protection Act 2019 has been preferred by the appellant/Rabindra Nath Dey (Jdr) against the order impugned being no – 48 dated 10/02/2023 passed by the ld Trial Commission, Baruipur in connection with the Execution Application being no-EA/31/2019 wherein the ld Trial Commission concerned has been pleased to hold that the Jdr Rabindranath Dey has failed to pay any decretal amount on the date fixed. So, the Jdr viz. Rabindranath Dey was remanded to J.C. at Baruipur Correctional Home till 24/02/2023. Jdr Rabindranath Dey was suffering from illness. In view of the same the direction has been given to the Superintendent, Baruipur Correctional Home for taking necessary steps for medical treatment of the Jdr and further direction has been given to the appellant/Rabindranath Dey to make payment of the decretal amount by the Jdr/Rabindranath Dey to the Decree Holder. Being aggrieved and dissatisfied with such order the appellant/Rabindranath Dey has preferred the instant appeal against the respondent/complainant.
The record has been taken up for hearing.
We have heard the ld counsel appearing for the appellants on the point of admission at length and in full.
The hearing has been concluded.
We have considered the submissions of the ld counsel and have also perused the materials available on the record including the order impugned dated 10/02/2023 meticulously.
By virtue of order no-48 dated 10/02/2023 the ld Trial Commission has been pleased to pass the following order which runs as follows:-
“ Jdr Rabindranath Dey is produced from J.C. at Baruipur Correctional Home today. Ld advocate for the Dhr is also present. Ld advocate for the Jdr Rabindranath Dey files an application with a prayer for bail on the ground stated therein. Heard, perused and considered. As there is no development, the prayer for bail is rejected. Jdr Rabindranath Dey is unable to pay any decretal amount today. So, the jdr Rabindranath Dey is remanded to J.C. at Baruipur Correctional Home till 24.02.2023. it is submitted that the jdr Rabindranath Dey is suffering from illness. In view of the same, the Superintendent, Baruipur Correctional Home is hereby directed to take necessary steps for medical treatment of the jdr. To date for making payment of the decretal amount by the jdr. Rabindranath Dey to the Dhr. Let a copy of this order be sent to the Superintendent, Baruipur Correctional Home for information and necessary action.”
At this juncture, whether the applllant/Jdr/Rabindranath Dey is entitled to file the instant appeal under section – 73 of the Consumer Protection Act, 1986, that should be decided at first in order to meet the proper justice to the parties.
Section-72(1) of the said Act 2019 runs as follows:-
“Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years or with fine, which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees or with both.”
Section 73(1) of the said Act runs as follows:-
“Notwithstanding anything contained in the Code of Criminal Procedure, 1973, where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from:-
- The order made by the District Commission to the State Commission,
- The order made by the State Commission to the National Commission,
- The order made by the National Commission to the Supreme Court.
So from the bare reading of the aforesaid two sections it is clear to us that when the order of punishment with imprisonment or fine or with both is passed against any person aforesaid, the appeal can be preferred against the said order. In the instant appeal no order in respect of punishment with imprisonment or fine or with both has been passed against the jdr/Rabindranath Dey. So, in pursuant to the above referred two sections, it is the settle principle of law that the appellant/jdr/Rabindranath Dey is not entitled to file the instant appeal against the execution pending before the concerned District Commission.
At this juncture we can safely rely upon the decision Ravikant G. Salaskar vs Kirit Shah and others reported in 2018(2)CPR 558 (NC) wherein the Hon’ble NCDRC held that “.................We are of the view that an appeal against the issuance of non-bailable warrants, in the proceedings initiated by a decree holder under section 27 of the Act 1986 is not maintainable under section 27A of the Act 1986.”
Accordingly we are constrained to dismiss the instant appeal without any order as to costs.
Hence the instant appeal stands disposed of.
Note accordingly.
Let a copy of this order be supplied to the parties free of costs.
Let a copy of this order be transmitted to the ld Trial Commission for compliance and for taking necessary action.
