ORDER (Per: Justice Irshad Hussain, President): Appellant was the opposite party No. 2 in consumer complaint No. 45 of 1998, Shyam Singh Rana Vs. Manager, Premier Motors Automobiles Engineer and another, decided on merit per order dated 06.05.2000 by the District Forum, Chamoli in favour of the complainant. The relief granted was that the opposite parties would install new engine within a period of three months from the date of the order in the vehicle-in-question bearing registration No. UP07C/2145 (jeep) and in the event of failure to do so, the appellant – opposite party No. 2 shall pay an amount of Rs. 2,70,081/- together with sum of Rs. 5,000/- towards financial loss with interest @ 10% p.a. to the complainant from the date of order till payment. 2. Complainant filed execution petition No. 15 of 2000 in order to have the above order complied with by the opposite parties. The opposite parties submitted that the engine of the vehicle had been replaced and with a view to verify the claim, the District Forum called for a report from the Senior Foreman of Regional Workshop of U.P. Roadways, Dehradun. On 24.07.2001, the District Forum passed the following order in the execution petition : “The report of Foreman has come, the compliance of the order of Court dated 6.5.2000 has been certified. Hence the complainant to collect the jeep. The OP has undertaken to give 1 years warranty. With this observation the execution is struck off.” 3. It need to be mentioned that the report dated 21.07.2001 of the Senior Foreman on record, referred thereto in the above order, certify that vehicle No. UP07C/2145 was technically examined by the undersigned at Premier Motors and it had been found that engine No. XD3PB, DV 20619S is installed in the vehicle. On the cylinder head of the vehicle, impression 97/1138/7 is found impressed and on perusal, the engine appear to be new one. 4. The complainant, in view of the above order passed in execution petition, took delivery of his jeep on 25.08.2001 from Premier Motors, Dehradun and gave in writing that he had taken the delivery of the vehicle after road test. 5. 4. The complainant, in view of the above order passed in execution petition, took delivery of his jeep on 25.08.2001 from Premier Motors, Dehradun and gave in writing that he had taken the delivery of the vehicle after road test. 5. The complainant, however, on 15.09.2001, filed second execution petition numbered as 14 of 2001 before the District Forum, Chamoli, alleging that new standard engine in the jeep had not been fixed by the opposite parties and which fact came to be known to him when on 11.09.2001, RTO, Rishikesh refused to register the vehicle on account of fictitious numbers impressed on the engine which also does not appear to be new one. The complainant, therefore, made a prayer that in compliance of the initial order dated 06.05.2000 of the District Forum passed in the consumer complaint, the opposite parties be directed to pay to him sum of Rs. 2,70,081/- plus Rs. 5,000/- with interest @ 10% and further sum of Rs. 10,000/- towards financial loss. 6. The District Forum, on this second execution petition, passed the following order on 05.04.2003 : ßokn iqdkjk x;kA oknh e; vf/koDrk mifLFkrA foi{kh dh vksj ls dksbZ mifLFkr ugha vk;kA izkFkhZ dh vksj ls muds vf/koDrk }kjk dgk x;k fd Qksje ds vkns”k ij foi{khx.k }kjk muds okgu dk batu ugha cnyk x;kA vr% foi{khx.k ls Qksje }kjk ftl /kujkf”k dh fMØh dh xbZ Fkh] mldh olwyh dj yh tk, ,oa rn~uqlkj VªkUlQj lfVZfQdsV fuxZr dj fn;k tk;A izkFkhZ dh vksj ls vius bl rdZ dh iqf’V esa Lo;a dks izLrqr fd;k x;k gS ftlls izkFkhZ dk ;g dFku Li’V gks tkrk gS fd Qksje ds vkns”k ds mijkUr Hkh batu cnyk ugha x;k gSA vr% izkFkhZ foi{khx.k ls /kujkf”k izkIr djus dk vf/kdkjh gSA rn~uqlkj VªkUlQj lfVZfQdsV fu;ekuqlkj fuxZr fd;k tk;sAÞ 7. The above order then, on the basis of transfer certificate issued by the District Forum, Chamoli, led to filing of execution petition numbered as 05 of 2007 before the Civil Judge (Senior Division), Lucknow, which issued summons to the appellant – opposite party No. 2, so that the order passed in execution petition No. 14 of 2001 may be enforced after hearing both the parties to the proceedings. The appellant – opposite party No. 2 was taken by surprise to receive the notice and, thus, went on to file this appeal for setting aside the order dated 05.04.2003 passed by the District Forum, Chamoli in execution petition No. 14 of 2001. Application for condonation of delay in filing the appeal was also filed with the allegations that the complainant – respondent No. 1 has managed to hoodwink the Forum below into passing the impugned order by concealment of material information; that the fraud vitiates the order impugned obtained by concealment of facts of earlier execution petition No. 15 of 2000, having been disposed of per order dated 24.07.2001 in full satisfaction; that the appellant had engaged an Advocate to represent it, but it seems that the said counsel did not effectively prosecute the appellant’s case and perhaps colluded with the complainant in not placing the correct factual position before the District Forum and that the delay in filing the appeal was neither deliberate, nor intentional. 8. Complainant filed objections against the application for condonation of delay and pleaded that on behalf of the appellant, an application for setting aside the ex-parte order dated 05.04.2003 passed in execution petition No. 14 of 2001 was moved and registered as misc. case No. 02 of 2005, but the said application was not duly prosecuted and was dismissed for want of prosecution on 11.11.2005 by the District Forum, Chamoli; that the appellant knew very well the fact about the order dated 05.04.2003 passed against it by the District Forum in the execution petition; that the counsel for the appellant later on moved another application on 01.10.2007 before the District Forum, Chamoli for setting aside the order dated 05.04.2003 and to have the proceedings of the execution petition before the Civil Judge (Senior Division) Lucknow stayed and, thus, was again well aware of the order passed by the District Forum against it and failed to prosecute the case; that no sufficient cause, therefore, for condonation of delay has been shown by the appellant and that on the ground of inordinate delay itself, the appeal deserve to be dismissed summarily. 9. We have heard the learned counsel for the parties and carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. 9. We have heard the learned counsel for the parties and carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. This appeal was filed on 24.10.2007 and considering the fact that on the basis of transfer certificate issued per order dated 05.04.2003, the execution petition No. 05 of 2007 was filed by the complainant before the Civil Judge (Senior Division), Lucknow on 09.02.2007 and since the cause of action being continuing one till the said date, the delay in filing the appeal, as urged by the learned counsel for the appellant, can safely be said to be of about eight months only and in the totality of the circumstances of the case, the period of delay would not be counted between 05.04.2003, the date of order passed in second execution petition No. 14 of 2001 and 24.10.2007, the date of filing of the appeal. In so far as the delay of about eight months or at any rate more than that considering the order passed on 05.04.2003 in second execution petition No. 14 of 2001 in filing the appeal is concerned, we see merit in the argument of the learned counsel for the appellant that the period of delay looses significance when the impugned order suffer from serious infirmity. The authority on the point pressed into service is the decision of the Hon’ble National Commission in the matter of Haryana Urban Development Authority and another Vs. Vipin Kumar and another; II (2009) CPJ 115 (NC) and wherein it had been stressed that when the impugned order suffer from serious infirmity, the delay can very well be condoned per observation made in paragraph No. 5 of the judgment as under : “5. The petitioner has filed an application for condonation of delay, which as per office note is 64 days. The reason for delay, which has been given is stated to be on account of administrative delay in movement of the file of revision. Though there are no sufficient grounds for condoning delay, yet, in the facts and circumstances and especially since the impugned orders suffer from serious infirmity, the delay is condoned.” 10. The reason for delay, which has been given is stated to be on account of administrative delay in movement of the file of revision. Though there are no sufficient grounds for condoning delay, yet, in the facts and circumstances and especially since the impugned orders suffer from serious infirmity, the delay is condoned.” 10. The serious legal infirmity in the impugned order pointed out by the learned counsel for the appellant pertain to the filing of second execution petition No. 14 of 2001, when the first execution petition No. 15 of 2000 has already been struck off in full satisfaction on the basis of the report of a Senior Foreman, who had verified that in compliance of the initial order of the District Forum, the engine of the complainant’s vehicle had been replaced by new one. Not only this, the complainant after the final order dated 24.07.2001 passed in the first execution petition No. 15 of 2000, took delivery of his vehicle from the opposite party No. 1 on 25.08.2001. The delivery of the vehicle had been taken after road test and the complainant endorsed it in the certificate placed on record apart from the job card dated 25.08.2001 and also the satisfaction voucher of the said date duly signed by the complainant. There can also be no doubt that the complainant thereafter filed second execution petition No. 14 of 2001, which, in the above circumstances, was legally not maintainable and, thus, managed to abuse the process of the Forum by concealment of the facts. Therefore, the order impugned per-se being without jurisdiction and illegal, suffer from serious infirmity and the delay in filing the appeal is fit to be condoned and more so, when it has been categorically averred on behalf of the appellant that the counsel who had been engaged by it to represent its case before the District Forum, Chamoli, which passed the ex-parte order on second execution petition, colluded with the complainant in not placing the correct factual position before the District Forum. In the face of such an averment and the peculiar facts of the case, we see no force in the argument advanced on behalf of the complainant that the application for setting aside the order dated 05.04.2003 and registered as misc. In the face of such an averment and the peculiar facts of the case, we see no force in the argument advanced on behalf of the complainant that the application for setting aside the order dated 05.04.2003 and registered as misc. case No. 02 of 2005, having been dismissed in non-prosecution on 11.11.2005, the appellant could not claim that its counsel colluded with the complainant and on such allegation, the condonation of delay could not have been claimed by the appellant. 11. In the face of the above facts of the case, the following reported decisions pressed into service on behalf of the complainant, would not help his cause. (i) Adarsh Model School Vs. Ram Tirath and others; I (2007) CPJ 207. (ii) Agra Development Authority Vs. Shailendri; I (2009) CPJ 13 (NC) (iii) Prabir Kr. Das Vs. UCO Bank (Maldra Branch); II (2002) CPJ 286. 12. In view of the discussion made above and the order impugned suffering from serious legal infirmity, the application for condonation of delay is fit to be allowed, which we hereby do and the delay in filing the appeal is condoned. 13. As regards the merit of the appeal, the facts of the case speak themselves to warrant a favourable order in favour of the appellant. The first execution petition having been struck off in full satisfaction and that too in the face of the report of the Senior Foreman dated 21.07.2007, referred above, verifying that new engine had been fixed in the vehicle of the complainant, there was absolutely no occasion for the District Forum, Chamoli to have entertained second execution petition No. 14 of 2001 and then to pass the impugned order dated 05.04.2003, merely on the basis of the allegation of the complainant that new engine had not been fixed in the vehicle in compliance of the initial order dated 06.05.2000 of the District Forum passed in his consumer complaint No. 45 of 1998. As stated above, the complainant had taken delivery of the jeep on 25.08.2001 after getting himself satisfied that the vehicle was roadworthy and after the opposite party No. 1 had duly certified in the job card and satisfaction voucher that new engine, as was directed by the District Forum, had been fixed in the vehicle. 14. As stated above, the complainant had taken delivery of the jeep on 25.08.2001 after getting himself satisfied that the vehicle was roadworthy and after the opposite party No. 1 had duly certified in the job card and satisfaction voucher that new engine, as was directed by the District Forum, had been fixed in the vehicle. 14. As stated above, the complainant had himself signed these documents at the time of taking delivery of the jeep after the engine had been changed. As is evident from the record and as pointed out by the learned counsel for the appellant, the complainant was interested from the very beginning, in avoiding taking delivery of the vehicle after the engine had been replaced and failed to respond to the registered letter sent by opposite party No. 1 on 14.06.2000 and have the registered letter returned to the sender with the postal department’s endorsement that the addressee (complainant) refused to receive the registered letter. Later on, the appellant also sent a letter dated 28.06.2000 to the complainant asking him to take the delivery of the vehicle with replaced new engine, but no response was made by the complainant. Opposite party No. 1 was also forced to report on 03.07.2000 to the District Forum, Chamoli that registered letter was sent to the complainant to collect the vehicle, but the complainant had refused to accept the letter and the copy of the same was also attached for information of the District Forum. The complainant having avoided taking response as such, had filed first execution petition before the District Forum, Chamoli and in which order dated 24.07.2001, as stated above, was passed and the complainant, therefore, has no alternative but to take delivery of his vehicle with replaced engine on 25.08.2001. The complainant was, however, interested to somehow realise the amount from the opposite parties instead of getting the new engine fixed in his jeep. Therefore, the submission of the learned counsel for the appellant that there was no guarantee that the new engine fixed in the jeep in compliance of the order dated 06.05.2000 by the appellant, was designedly changed by the complainant after the first execution was struck off in full satisfaction, can safely be said to be highly meaningful. In other words, the complainant clearly appear to have misused the process of law and the second execution petition filed by him was not legally maintainable. In other words, the complainant clearly appear to have misused the process of law and the second execution petition filed by him was not legally maintainable. The order, therefore, passed in the second execution petition on 05.04.2003, thus, can not legally be maintained and the same is liable to be set aside. 15. In view of above, appeal is allowed and the order impugned dated 05.04.2003 of the District Forum is set aside and the execution petition No. 14 of 2001 as well as the consequential proceedings initiated before the Civil Judge (Senior Division) Lucknow, are dismissed, as being not maintainable. Parties to bear their own costs.