IMPORTANT POINT
A new plea cannot be taken for first time in execution proceedings.

V.K. Jain, Presiding Member—Vide order dated 05-05-2010 passed in Complaint No.12 of 2004 the District Forum directed as under:

“It is hereby ordered that the complaint dated 15-03-2004 filed by the complainants herein against the opposite parties herein stands hereby allowed. Accordingly, the opposite parties are hereby directed to deliver the possession of the said Shop No.S1 completed as per the Agreement to the complainants in terms of prayer (a) of para 25 of the complaint. The opposite parties are also further directed to obtain the Occupancy Certificate and Completion Certificate from the appropriate authorities and also to get NOC for the sale of Shop No.S1 of the suit building and to execute the Deed of Sale in favour of the complainants. We further direct the opposite parties to pay to the complainants interest @18% per annum on the sum of Rs.3,00,000/- from 05-03-2002 upto 05-08-2002 as prayed for at para 25 sub para (c) of the complaint and to pay further interest in terms of paras (d) and (e) thereof. The opposite parties are directed to pay to the complainant the cost of Rs.5,000/- the aforesaid directions under this order shall be complied by the opposite parties herein within 30 days from the date of this order.”

2. Being aggrieved from the aforesaid order of the District Forum the petitioners preferred an appeal before the concerned State Commission. Vide order dated 13-12-2012 the State Commission dismissed the appeal filed by the petitioners, thereby maintaining the above referred order of the District Forum. The petitioners did not challenge the order passed by the State Commission, either by way of a revision petition before this Commission or in any other manner. Consequently, the said order became final and binding in terms of Section 24 of the Consumer Protection Act.

3. Since the order passed by the District Forum and maintained by the State Commission was not complied, the complainants filed Execution Application No.13 of 2010 before the concerned District Forum. Vide order dated 01-08-2014, the District Forum directed the petitioners to undergo imprisonment for nine months each and to pay Rs.5,000/- each as compensation or to undergo simple imprisonment for another 15 days in default.

4. The petitioners preferred an appeal under Section 27A of the Consumer Protection Act before the State Commission against the above referred order of the District Forum. The said appeal having been dismissed vide impugned order dated 13-12-2012 the petitioners are before us by way of this revision petition.

5. The main contention of the learned counsel for the petitioners is that since the services of the petitioners were hired or availed by the complainants for a commercial purpose, they were not ‘consumers’ in terms of Section 2(1)(d) of the Consumer Protection Act. In our view, the aforesaid plea ought to have been taken by the petitioners in their written version to the complaint filed before the District Forum. If that was not done, the issue could possibly have been raised during the course of arguments before the District Forum or in the appeal filed before the State Commission. The said plea, in our view cannot be taken for the first time in execution proceedings. The consumer forum before which a complaint under the Consumer Protection Act is filed has the jurisdiction to decide whether the complainant is a consumer as defined in the Act or not. If a person is aggrieved from the finding recorded by the consumer forum on such a plea, he can agitate the matter by way of an appeal/revision petition before a higher forum but, such a plea cannot be taken for the first time in the execution proceedings. The learned counsel for the petitioners submit that a consumer forum granting relief against a person who is not a consumer within the meaning of Consumer Protection Act will be a case of an order having been passed without jurisdiction and such an order can be questioned in collateral proceedings including