1.         The present Appeal Execution has been filed against the order dated 13.09.2018 alleging therein that order is illegal because the Decree Holder cannot take possession of the flat  since there are many deficiencies and occupancy certificate has been obtained illegally in violation of the provisions of the RERA.

2.         Arguments heard.  It is argued on behalf of the Judgment Debtor that they have a valid occupancy certificate and there are about 700 persons who are residing in that project and it is the decree holder who is not interested in

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taking the possession and that is why he has moved MA No. 2069 of 2018 before the State Commission for refund of his amount and is not coming forward to take the possession.  MA was dismissed. 

3.         We have heard the arguments of the parties and have gone through the record.

4.         Brief facts of the case are that DH / Appellant had filed a complaint before State Commission.  The State Commission while disposing the complaint issued following directions :

“12.     The next point raised by the counsel for the complainant is that the possession of the flat has not been handed as per schedule.  He again referred to the letter of intent  in which according to Clause 3 (ii), it was agreed by Ops that possession of the apartment shall be handed over after completion of work at site in a period of 36 months from the date of issuance of letter of intent.  In case authority is unable to deliver the possession of the apartment within the stipulated period, allottee shall have a right to withdraw from the scheme by moving an application to the Estate Officer and can get the refund of the amount deposited with 8% interest compounded annually.  The letter of intent was issued on 15.06.2012, therefore, the period of 36 months was completed on 14.06.2015.  The counsel for the Ops was unable to tell within how much period they will deliver the possession of the flat as per letter of intent. In case Ops is taking high amount of interest even for delay of 23 days then the complainant must be compensated with interest in case they delay the delivery of possession. Even in this own letter of intent, there is provision of 8% interest compounded annually. Since the complainant has made the payment of 95%, he is not interested to get back his money because with great difficulty he got sanctioned his loan and paid a sum of Rs.33,96,250/-, therefore, w.e.f. 15.06.2015, Ops will pay 8% interest compounded annually on the amount deposited by the complainant till the delivery of possession of the flat, complete in all respect including occupation certificate from the Competent Authority.

13.       Since the interest amount has been allowed to the complainant on the deposited amount on account of delay in delivery of possession, the amount of penal interest to be charged from the complainant for delay of 23 days in payment of 65% amount will be adjusted by Ops in the interest amount to be paid by them on account of delayed delivery of possession.  No

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compensation can be allowed to the complainant as interest has been allowed to him on the deposited amount for delayed delivery of possession.  However, for litigation expenses, he is allowed Rs.11,000/-.”

5.         This order was challenged before this Commission in Appeal No. 1374 of 2016.  This Commission while disposing of the appeal modified the State Commission’s order and held as  under:

“16.  The question surviving for consideration is whether the direction by the State Commission to GMADA to pay to the Complainant compound interest @ 8%  on the amount (s) deposited by him, because of delay in delivery of possession of the subject Apartment, is justified?

17.  Having perused the pleadings on the point, we are of the opinion that the said direction is unsustainable for the simple reason that no such relief was even prayed for I n the Complaint.  As afore-noted, the main prayer in the Complaint was for condonation of delay in remittance of the 65% of the sale consideration and acceptance of the stated amount with interest @ 18% p.a.  Besides the prayer for payment of cost of litigation, the Complainant had prayed for compensation of a lump sum amount of Rs.1,00,000/- on account of physical and mental agony suffered by him and his family because of the decision by GMADA not to restore the allotment under plan Á’.  Hence the direction to GMADA for payment of interest at the aforesaid rate, by way of compensation for the delay in delivery of possession deserves to be deleted with a direction that GMADA shall pay to the complainant a lump sum amount of Rs.1,00,000/- as compensation for mental and physical agony suffered by him on account of inordinate delay in acceding to his genuine prayer for regularization of allotment of the   Apartment under payment Plan A.  It is ordered accordingly.”

6.         The decree holder, thereafter, filed an Execution Petition before the State Commission seeking refund of his amount and also sought other directions.

7.         During the pendency of the said Execution Petition, the Judgment Debtor filed the occupation certificate dated 05.07.2018 alongwith affidavit of its Estate Officer

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and sought instructions that decree holder be directed to take the possession.  Before the State Commission, the Decree Holder had contended that project is incomplete and this contention was rejected by the State Commission.  Before the State Commission, Decree Holder had also moved an application MA No. 2069 of 2018 for refund of the money which he paid to the Judgment Debtor towards the said flat and this application was also rejected vide impugned order.  The Commission in execution has a limited jurisdiction.  It has to execute a decree as it is.  It has no jurisdiction to modify or change the decree.  The decree related to possession and compensation.  The State Commission has rightly rejected the claim for refund of the Decree Holder in the execution petition as the claim was alien to the decree. 

8.         Since the Judgment Debtor had filed the completion certificate along with the affidavit of the Estate Officer , who had certified that flat is fit for occupation,  nothing had remained in the execution application and only course open to the appellant was to take the possession, which evidently he does not want now.   We found no illegality or infirmity in the impugned order. 

9.         The present Appeal has no merit and same is dismissed with direction to the parties that as soon as the Decree Holder approaches the Judgment Debtor by way of an application seeking possession, same shall be   handed over to him within four weeks in terms of decree and all the  miscellaneous expenses including stamp duty etc. shall be borne by the Decree Holder.