The letter from the other side's counsel usually reads as though the order has evaporated. It has not. Understanding exactly what Section 41 does and does not do changes what you should be doing in the next two weeks.
Read the words grounds of facts or law. This is a full appeal, not a narrow review, so the State Commission can look at the evidence again. That is worth knowing because it sets your expectations about what the hearing will involve.
Two things people get wrong
The first is the deposit. Fifty per cent has to be deposited before the appeal is entertained, and complainants read that as a suspension of the order pending appeal. It is not. It is a filter designed to stop appeals filed purely to delay payment. If the appellant wants your order suspended, it has to apply for a stay and persuade the State Commission to grant one, and that application should be opposed rather than treated as a formality. Where a stay is granted, it is worth asking for terms, including whether the deposited amount can be released to you against security.
The second is time. The forty five days runs from the date of the order, not from the date you served it or the date they say they came to know of it. A very large number of these appeals arrive late with a condonation application attached. Do not consent to condonation as a courtesy. Put your objection on the record with dates, because a delay that goes unopposed is a delay that gets condoned as a matter of course.
What to do in the first two weeks
- Obtain a certified copy of the order and check the exact date it bears, since every deadline runs from it
- Enter appearance in the appeal and get on the record, so that you receive notice of the stay application rather than hearing about it afterwards
- Check whether fifty per cent has actually been deposited, and take the point at the first hearing if it has not
- File your objection to any condonation application, with a dated chronology rather than a general denial
- Apply for execution under Section 71 if no stay has been granted, because an unstayed order is an enforceable order
- Keep a running note of interest as it accrues under the order, so that the figure is ready whenever the money is paid
Enforcing while the appeal is pending
Section 71 provides that every order made by a commission shall be enforced by it in the same manner as if it were a decree made by a court in a suit before it, and the provisions of Order XXI of the Code of Civil Procedure, 1908 apply. Alongside it, Section 72(1) makes non compliance with an order punishable with imprisonment of not less than one month and up to three years, or a fine of not less than twenty five thousand rupees and up to one lakh rupees, or both, and Section 72(2) gives the commission the powers of a Judicial Magistrate of the first class for the trial of such offences, with an appeal against such an order available under Section 73 within thirty days. Our note on executing a decree and actually recovering money covers the mechanics of Order XXI.
How far this can go
| Stage | Provision | Time and condition |
|---|---|---|
| District Commission order | Section 40 allows review by the same commission for an error apparent on the face of the record | Within thirty days |
| Appeal to the State Commission | Section 41, on facts or law | Forty five days, with a fifty per cent deposit by a person required to pay |
| Hearing of that appeal | Section 52 requires it to be heard as expeditiously as possible | An endeavour to dispose of it within ninety days of admission |
| Further appeal to the National Commission | Section 51(2), from an order passed in appeal by a State Commission | Only if the National Commission is satisfied the case involves a substantial question of law, which Section 51(3) requires the memorandum to state precisely |
| Revision | Section 58(1)(b) lets the National Commission call for records where a State Commission has exercised a jurisdiction not vested in it, failed to exercise one, or acted illegally or with material irregularity | Not an appeal, and not a second look at the facts |
| Supreme Court | Section 67, against a National Commission order made in its original jurisdiction | Thirty days, with a fifty per cent deposit by a person required to pay |
The row that matters most is the fourth one. A defeated opposite party often talks about going all the way, and after a State Commission appellate order the door narrows sharply, because Section 51(2) lets a further appeal in only on a substantial question of law. That is not a rehearing of whether the appliance was defective. Section 68 then provides that an order not appealed against becomes final.
What I would say to anyone in this position is that an appeal is very often an instalment plan rather than a genuine challenge. The appellant has parted with half the money already. Ask for that deposited amount to be released to you, on security if the commission wants it, and treat the appeal as a negotiation that has just acquired a deadline rather than as a fresh trial you have to survive.