MARY CHACKO Vs. JANCY JOSEPH

JUDGEMENT

(1.) Whether a woman can be arrested in execution of an order passed under Section 27 of the Consumer Protection Act, 1986 is the question that has come up for consideration in this case.

(2.) O.P. No. 740 of 1993 was filed by the fourth respondent in the Original Petition herein before the Consumer Disputes Redressal Forum, Ernakulam (for short "Forum") against the writ petitioner and others for recovery of an amount of Rs. 45,000/- in all which was due to her. Writ petitioner and others were partners of a firm engaged in money lending business. The Forum passed an order on 10.2.1995 directing the writ petitioner and others to pay Rs. 65,768.87 with interest at the rate of 12% per annum on the principal sum of Rs. 45,000/- from 15.6.1989 to 12.4.1992 and thereafter on the total amount of Rs. 65,768.87 and also Rs. 300/- as costs within one month. Amount was not paid, consequently E.P. No. 155 of 1995 was filed before the Forum for execution of the order. First opposite party before the Forum resisted the partition stating that she has no means to pay and that a woman cannot be arrested in execution for non payment of the amount. Forum rejected the petition and directed the parties to comply with the order and posted the matter for further steps to 26.2.1996. Meanwhile Writ Petition was preferred before this Court seeking a declaration that Section 27 of the Consumer Protection Act, 1986 is ultra vires and unconstitutional and the same may be struck down and also for a declaration that the petitioner being a woman cannot be arrested and detained by the Forum in exercise of the powers under Section 27 of the Act and also for other consequential reliefs. Learned single Judge allowed the Writ Petition. Judgment is reported in Mrs. Jancy Joseph v. Union of India and Ors., 1999 (1) KLT 422. Learned single Judge took the view that the provisions of arrest in the Code of Civil Procedure have to be taken in consideration by the Forum while dealing with recovery of money. Consequently, under Section 56 of the Code of Civil Procedure, the Forum shall not order arrest or detention in civil prison of a woman in execution of a decree for payment of money. Aggrieved by the same this appeal has been preferred by the fourth respondent in the Writ Petition.

(3.) Counsel appearing for the appellant Sri. P. Santhalingam submitted that Section 27 of the Act is constitutionally valid and cannot be assailed. Counsel also submitted that the provisions of Section 56 of the Code of Civil Procedure cannot be imported while dealing with Section 27 of the Consumer Protection Act. Counsel referred to the decision of a Division Bench of this Court in Cyril Britto v. Union of India, 2003 (2) KLT 879 : and submitted that this Court declined to import Section 56 of the Code of Civil Procedure to the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act (for short "RDB Act") and the same principle be applied in the case of Consumer Protection Act as well.