An order of execution disposal based on factual misrepresentation by a judgment debtor regarding compliance is legally unsustainable; appellate courts may correct such material irregularities in exercise of their jurisdiction, even if a wrong legal provision is initially cited by the appellant.

ORDER

Final Order/Judgement

HON’BLE MR ANANDA KUMAR TIWARI
(JUDICIAL MEMBER)

The appellants filed this appeal under Section 27A of the Consumer Protection Act 1986 (hereinafter referred to as Act of 1986) impeaching the order dated 20/01/2015 passed by Hon’ble District Consumer Disputes Redressal Commission, South 24-Parganas, Amantan Bazar, 3rd Floor, Kachhari Bazar, PO & PS Baruipur, Kolkata-700144 (hereinafter referred to as the Hon’ble District Commission) stating that the appellants as complainants filed one complaint case being Number CC/217/2011 on 16 September, 2011 before Hon’ble District Commission (presently Unit –III) praying for the relief claimed in the prayer portion of the said complaint. It is stated that the opposite party (respondent herein) appeared and after hearing both parties, Hon’ble District Commission directed the opposite parties to execute the registered deed of conveyance in favour of the complainants (Appellants herein) in respect of the scheduled flat within one month of the passing of the order and also directed the opposite parties to pay compensation. The appellants further stated that being aggrieved by the order of Hon’ble Commission, the opposite party therein preferred an appeal before Hon’ble State Commission and after hearing said appeal, Hon’ble State Commission modified the order by modifying the quantum of the compensation to Rs 50,000/- from 2,00,000/-, the other operating portion of the judgment was not interfered.

The further case of the Appellants is that they filed an execution case being EA 143/2013 before Hon’ble District Commission but during the pendency of the said execution application, the judgment debtor therein requested the appellants to settle matter amicably and promised to execute the registration deed in favour of the appellants. It is stated that the respondentsbeing Jdr therein paid Rs 50,000/- to the petitioner on 1/08/2013 on account of the compensation as awarded by Hon’ble State Commission and assured the appellants that they will execute and handover deed of conveyance in respect of said flat at an earliest, to which the appellants agreed. According to the appellants in view of the development, he instructed his Ld Advocate not to take any steps in the execution application and in view of the direction, Ld Advocate for the appellants did not take any further steps before the Hon’ble District Commission and ultimately on 20/01/2015 said execution application was disposed of on full satisfaction on 20/01/2015.

It is the case of the appellants that thereafter several times the appellants requested the respondents to execute deed of conveyance in their favour but the judgment debtors failed to execute the same. The appellants stated that they also sent an advocate notice dated 05/02/2019, which was served upon the opposite parties/respondents No’s 2 to 5 and the OP no 1 refused the same. It is stated that the respondents replied the notice of the appellants denying the allegations. The appellants stated that they believing the version of the judgment debtors therein did not take steps in the execution application, which was ultimately disposed of.

Contending the above and other facts as stated in the appeal filed, the appellants prayed to allow the Execution Appeal case and prayed for direction upon the Opposite parties to execute the deed of sale in favour of the Applicant and other reliefs as prayed in the prayer portion of the complaint.

The record reflects that the appellant filed the Appeal after delay of 1624 days but after hearing both sides on the point of limitation, the delay was condoned by this Commission subject to the payment of cost by the appellant to the respondents, which was paid by the appellant.

The respondent No 2 denied the entire allegation and stated that there is no reason for filing the appeal by the appellan