Can order be changed during Execution Petition?
Sridhar
(Querist) 25 January 2010
This query is : Resolved
Dear Sir/Madam,
Our builder from whom we purchased flat refused to register the flat by asking for unreasonable charges.We filed a complaint in the state consumer forum,Karnataka and Builder then revealed a pending dispute between the builder and landowner and hon'ble high court of karnataka restrains him from alienating the property.Hon'ble forum after hearing granted him one year to register the flat or refund the money.In case of registration we(DH) were ordered to bear the difference in registration and stamp duty.
One year went by and when there are only three days to the timeline given by stateforum,builder sent us letter to pay Rs 5.5 lakhs as service tax + vat + registration + stampduty against the court order which cleary says we have to pay only the difference in registration and stamp duty.
Also we came to know that the non alinenation order passed by high court of karnataka is still in force as the disptue between builder and landowner hasn't settled.We went and filed an EP and the builder appeared and said he is ready to register.Stateforum failed to notice that the high court non alienation order is still pending and dismissed our EP saying that "since the builder is ready and willing to regsiter the flat ,EP is dismissed.However if the DH is interested in getting the flat registered they are directed to approach the JDR and execute the deed as per the terms of the agreement as directed by this forum in complaint xx/2007."
Our builder says EP is dismissed and i have now pay Rs 40laksh as per the terms of the "sale" agreement.What we contend is that EP dismissed referring to the earlier order not eferrring to the sale agreement.
We filed another EP deteremined to bring to the notice of the state forum that builder cannot register the flat as high court order still in force and praying for the refund as directed by the forum in the decree.
In this regard i need few clarifications from this forum
1.Can the order given earlier by State forum be changed when it comes for Execution Petition?
2.What if the forum fails to consider that builder cannot register the flat as the high court order is still pending.
Builder cannot register the flat as the high court restrains him from doing so.Neither he wants to refund the money.Instead he is putting blame on us saying we are due Rs 40lakhs more to him for a flat costing Rs 28.5 lakhs which we already paid.
Please give your valuable suggestion as our next hearing is scheduled for 28/01/2010.
Regards
samyak Satish
(Expert) 25 January 2010
As far as change of order in Execution Application:Pl.site following judgements
1. State of Madhyapradesh Vs Mangilal Sharma AIR 1998 SC 743 stating that executing court is bound by the terms of decree, Execution court has not jurisdiction to add or alter the award.
, National Commission Order in Ashishlumar Biswas Vs DDA & Others 1996 (2) CPR 118, both these orders state that executing court has no jurisdiction to go behind the basic order in execution proceedings.
Orders can be found on respective court websites and also on google through Indiankanoon.com
Dr.Anjani Kumar Vaidyasen,09431271130,Patna
(Expert) 25 January 2010
Dear Sir,
Samyak Satish is provided you the reference in the matter and you can proceed ahead.
Second things the JDR demanded the difference money in service tax vat registration and stamp duty only and you should have to pay it.
Thanking you.
P. Venu
(Expert) 25 January 2010
The matter could be expedited if the purchasers of the flats impleads in the dispute pending before the Hon'ble High Court between the builder and the land owner.
Sridhar
(Querist) 25 January 2010
Thanks alot to everybody for providing your valuable suggestion.
I will show the references to my advocate.
Will keep you posted on the update.
Thanks alot once again.
N.K.Assumi
(Expert) 25 January 2010
Thank you Satish, for the citation:
Sridhar
(Querist) 25 January 2010
Dear Satish,
Can you please send me the citation
"National Commission Order in Ashishlumar Biswas Vs DDA & Others 1996 (2) CPR 118, both these orders state that executing court has no jurisdiction to go behind the basic order in execution proceedings"
I am not able to locate the same in NCDRC.
Thanks in advance.
adv. rajeev ( rajoo )
(Expert) 26 January 2010
state forum cannot change it's order when it comes to execution.
Forum has ordered to execute the sale deed or refund the money. When there is a high court order as not to alienate, you just ask for the refund of the money. File an application u/s 27 of the consumer act to initiate criminal proceedings.
Raj Kumar Makkad
(Expert) 26 January 2010
There are various citations of SC and National Commission in support of this settled law that the executing court cannot go behind the impugned order to be executed. Do you require latest citations pronounced even in 2010? If yes, let me know.
Sridhar
(Querist) 26 January 2010
Dear Makkad Sir,
It would be great if you can provide me latest citations pronounced in 2009-2010
Sridhar
(Querist) 26 January 2010
Dear Experts,
I have a followup question on the same matter as mentioned above.
The order(decree) we have is a consensual order in which the opposite party has agreed for the terms of the order.
It has been two since the decree has been passed and now it is in execution court.
Wanted to know what are the options JDR have now to fight against the decree?
Can he appeal in any other court?
