Joymalya Bagchi, J.@mdashThis application under Article 227 of the Constitution of India is directed against the order dated 4th October, 2010 passed by the learned State Consumer Dispute Redressal Commission, West Bengal (hereinafter referred to as "the State Commission), in R.P. No. 112 of 2009 arising out of order dated 11th August, 2009 in C.D.F. Unit I in Execution Case No. 15 of 2006 passed by the learned District Consumer Dispute Redressal Forum, Unit - II (hereinafter referred to as "the District Forum). The subject-matter of the instant case revolves around a complaint filed by the complainant/respondents before the District Forum, complaining "short delivery" against the petitioners in respect of sale of a flat. More succinctly, the case of the complainant/respondents is to the effect that although it was claimed that the super built area of the flat was 1264 sq. ft. but on delivery of possession the same was found to be 1042 sq. ft.
2. The District Forum accepted the said contention of the complainant/ respondents and by order dated 06.04.2006 awarded a sum of Rs. 3,80,000/-along with a sum of Rs. 10,000/- as compensation for such short delivery. The State Commission by its order dated 20.11.2007 affirmed the aforesaid order of the District Forum.
3. Being aggrieved by the same, the petitioners preferred a revisional application before the National Commission u/s 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986). By order dated 30.04.2008 the said application was dismissed.
4. Thereafter, the complainant/respondents initiated execution proceeding being Execution Case No. 15 of 2006 before the District Forum for execution of the aforesaid order. In the course of the said execution proceeding, the petitioners have taken out an application praying for appointment of a Special Officer and/or any qualified officer for taking measurement of the flat in question and submission of report in this regard.
5. By his oral submissions which are supplemented by written notes, the learned lawyer for the petitioners seek to reopen a factual issue as to whether the flat in question sold and delivered to the complainant/respondents was similar in size to what had been promised to be sold to them. It has been averred in the written submissions that such point, in fact, was raised before the subordinate tribunals but the tribunals have not gone into the issue.
6. It is pertinent to note, while dismissing the revisional application the National Commission in its order dated 30.04.2008 observed as follows :
................Since the petitioners alleged that the same area was given to the respondents, it was for them to have that fact proved by leading cogent evidence including the appointment of a Local Commissioner which they have failed to do...........
7. From the aforesaid finding it is evident that the petitioners had earlier raised the self-same issue and inspite of ample opportunity did not take out an application for appointment of Local Commissioner in course of the original proceeding. Having failed to do so, I am of the opinion that the petitioners cannot be permitted to reopen this issue at the stage of execution of the order.
8. The learned tribunals below were absolutely justified in dismissing such prayer on the well established legal principle that the Executing Court cannot go behind the decree.
9. The judgements cited by the petitioners are not relevant for deciding the matter in issue in as much as they do not relate to the proposition as to whether the Executing Court may permit a party to appoint a Local Commissioner for reassessing a question of fact which has already been decided in the order which is sought to be executed. The decisions cited are, therefore, of no assistance to the petitioner.
10. I find no reason to interfere with the impugned order and I dismiss the instant application. The Executing Court shall proceed with the execution proceeding as expeditiously as possible.
