Stay of an execution proceeding if appeal is filed.
Law Student
(Querist) 19 March 2011
This query is : Resolved
Dear All,
Please let me know the status of an Execution Application if the OP files for an Appeal in the interim.
Facts of the Case:
1) The Company lost the District Consumer forum case and was directed to pay compensation for the product to the consumer.
2) They were ordered to pay a measly sum of Rs. 50K within 8 weeks of the order.
3) Even after repeated follow up by me (Consumer) they have not paid the compensation and hence I filed an execution application on Feb 24th.
4) The hearing for admission of the execution was for April 5th.
5) On March 8th the OP (Company) filed an appeal (after I filed the Execution Application). The appeal was filed with an application for waiver of delay as the appeal was filed after 75 days of the district forum order. The statutory time limit for filing an appeal is 30 days.
6) The State Commission heard their appeal filed on March 8th on March 18th and has adjourned it for 6 months. The order passed by the State Commission was -
For Appeal "Issue notice on delay application to the respondent r/o 10/08/2011. Apart from notice from State Commission, Simultaneous additional private notice of advocate is also permissible"
For waiver of Delay: " Adjourned to 10/08/2011"
7) I found out the above by way of searching case status on NCDRC. No notice/intimation has been received by me till date.
My questions:
1) What does the State Commission's daily Judgment mean?
2) Does filing of this Appeal automatically stay the District Forum's order (even though the appeal has not been ad-missed)
3) Does this hamper/stay my Execution application.
4) Can I request the State Commission that the Company is trying Dilatory tactics and the date of 10/08/2011 should be advanced.
PS: I had read that "Pendency of an appeal does not stop the operation of a judgment unless stay is granted - 2005(1) CPC 292 Chd. "
Is this true, If yes can someone post a link to this judgment.
Thanks a ton in advance. Your inputs will be highly appreciated by a hapless consumer like me.
Arvind Singh Chauhan
(Expert) 19 March 2011
Order 41 Rule 1 stipulates that filing of an appeal would not amount to automatic stay of execution of decree- Execution of the decree during pendency of the appeal would, subject to restitution of the property in the event the appeal is allowed and the decree is set aside- SC-UAD-2009(2)-344.
Mere filing of a petition, appeal or suit would by itself not operate as stay until specific prayer in this regard is made and thereon so order of stay passed- SC-UAD-2009(2)-539.
Find the two attachments 2nd one is related specially to consumer matter.
Arvind Singh Chauhan
(Expert) 19 March 2011
Please Find the second attachment here.
Go through the 20th para of above attachment and para 22 of attached below.
Legal Fighter
(Expert) 19 March 2011
no automatic stay just by filing appeal.
Law Student
(Querist) 19 March 2011
Thanks a ton "Arvind" and "Legal Fighter".
I would be grateful if you could please advice on the following -
1)What does the daily order of the State Commission mean.
2) On April 5th (the hearing date for the admission of the execution application) what should be my stand. Should I request the Forum to accept the execution application (u/s 25) and request the forum to send a show cause notice to the Company?
