Order passed by Civil Court is amenable to scrutiny by the High Court: Bombay High Court
An order passed by the Civil Court is amenable to scrutiny by the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, held, A. S. CHANDURKAR AND SMT.PUSHPA V. GANEDIWALA, JJ; while adjudicating the matter in Ramdayal S/o Gulabchand Khandelwal v. Mahendra S/o Badrinarayan Khandelwal; [WRIT PETITION NO.3710/2005].  The predecessors of the appellants had filed a suit against the predecessor of the respondents who was described as a licensee for his eviction along with a further prayer for restoration of possession of the suit property which consisted of a tiled room along with kitchen. During the pendency of the said suit the parties entered into a compromise by which it was undertaken by the defendant that in Diwali-1987 he would vacate the suit premises. On failure to vacate the same the plaintiffs were entitled to execute the said decree and recover possession. The compromise decree was accordingly passed in terms of the compromise. Since the defendant did not vacate the suit premises as per the compromise-deed the plaintiffs filed execution proceedings. In the said execution proceedings the judgment debtor raised an objection to the maintainability of the execution proceedings, reasons for which are not required to be gone into. In short, it was the case of the judgment debtor that the decree passed on compromise was not executable and hence the execution proceedings were liable to be dismissed. The Executing Court upheld that objection and dismissed the execution proceedings by holding the same to be not maintainable in view of the fact that the decree was not executable. The decree holders challenged that order before the Appellate Court but that appeal was dismissed as not maintainable. The decree holders then filed a Writ Petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the Executing Court.
 on 30 06 2021 on 22 03 LPA 63 101JudgmentIN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.LETTERS PATENT APPEAL N0. 63 2010 IN WRIT PETITION NO.3710 2005 Chaman Chowk At Post Khategaon District DevasMorshi in execution proceedings on 03.10.1988 holding the decree inquestion to be inexecutable. C.A.Z. No.19 has been filed by therespondents seeking dismissal of the letters patent appeal on the groundthat the same is not maintainable.2.For considering the objection raised by the respondents to themaintainability of the letters patent appeal it would be necessary to referto certain relevant facts. The predecessors of the appellants had filedRegular Civil Suit No.1367 against the predecessor of the respondentswho was described as a licensee for his eviction alongwith a furtherprayer for restoration of possession of the suit property which consistedof a tiled room alongwith kitchen. During the pendency of the said suitthe parties entered into a compromise by which it was undertaken by thedefendant that in Diwali 1987 he would vacate the suit premises. Onfailure to vacate the same the plaintiffs were entitled to execute the saiddecree and recover possession. The compromise decree was accordingly on 30 06 2021 on 22 03 LPA 63 104Judgmentpassed in terms of the compromise. Since the defendant did not vacatethe suit premises as per the compromise deed the plaintiffs filedexecution proceedings being Regular Darkhast No.188. In the saidexecution proceedings the judgment debtor raised an objection to themaintainability of the execution proceedings reasons for which are notrequired to be gone into. In short it was the case of the judgment debtorthat the decree passed on compromise was not executable and hence theexecution proceedings were liable to be dismissed. On 03.10.1988 thelearned Judge of the Executing Court upheld that objection and dismissedthe execution proceedings by holding the same to be not maintainable inview of the fact that the decree was not executable. The decree holderschallenged that order before the Appellate Court but that appeal wasdismissed as not maintainable.3.The decree holders then filed Writ Petition No.37105under Articles 226 and 227 of the Constitution of India challenging theorder passed by the Executing Court. Prayerin the said writ petitionreads as under: “1.Quash order dated 20.2.1995 passed by theDistrict Judge Amravati in Regular Civil AppealNo.318 88 arising out of order dated 3.10.1988 passedby the Civil Judge Junior Division Morshi in RegularExecution Case 10 1988.” on 30 06 2021 on 22 03 LPA 63 105JudgmentThe learned Single Judge by his judgment dated 19.12.2008upheld the order passed by the Executing Court and consequentlydismissed the said writ petition. The aforesaid judgment of the learnedSingle Judge has been challenged in this letters patent appeal. Theappeal was admitted on 28.01.2010. It is thereafter that the respondentsfiled C.A.Z. No.19 seeking dismissal of the letters patent appeal onthe ground that it was not maintainable.4.Shri J.T. Gilda learned Senior Advocate for the respondentssubmitted that what was impugned in the writ petition was an orderpassed by the Civil Court in execution proceedings. The jurisdictionexercised by the learned Single Judge while entertaining and thereafterdismissing the writ petition was under Article 227 of the Constitution ofIndia especially in view of the fact that the order impugned in that writpetition was one passed by the Civil Court. It was his submission that asexception to the order passed by the Civil Court was taken in the writpetition the jurisdiction exercised while entertaining the same was underArticle 227 of the Constitution of India and hence the intra Court appealchallenging that adjudication was not maintainable. Placing reliance onthe decision in Jogendrasinhji Vijaysinghji Versus State of Gujarat &Others9 SCC 1] it was his submission that as it was held that nowrit could be issued against the order passed by the Civil Court the on 30 06 2021 on 22 03 LPA 63 106Judgmentletters patent appeal was not maintainable. Further reference was madeto the order dated 10.06.2015 passed by the Division Bench of this Courtin C.A.Z. No.215Mh.L.J. 916] and especially the answersgiven to the questions that were formulated while answering thereference. It was his contention that since there was a jurisdictional errorcommitted by the learned Judge of the Executing Court in refusing toentertain the execution proceedings the petitioners had invokedcertiorari jurisdiction before the learned Single Judge and in terms of thejudgment of the Full Bench the letters patent appeal was maintainable.He then submitted that while the jurisdictional aspect had been discussedin detail by the Full Bench in M s Advani Oerlikon Ltd.this aspectdid not fall for consideration before the Hon’ble Supreme Court inJogendrasinhjiMorshi in Execution Case No.188.In other words an order passed by the Civil Court was challenged in theaforesaid writ petition that was filed under Articles 226 and 227 of theConstitution of India. The question therefore that has to be consideredwhile deciding the objection raised by the respondents to themaintainability of the letters patent appeal is whether a letters patentappeal challenging the order passed by the learned Single Judge in a writpetition filed under Articles 226 and 227 of the Constitution of India inwhich an order passed by the Civil Court was impugned is maintainable on 30 06 2021 on 22 03 LPA 63 109Judgment7.In Surya Dev Rai Versus Ram Chander RaiMh.L.J.633it was held by a Bench of two Hon’ble Judges of the Hon’bleSupreme Court that an order passed by the Civil Court was amenable towrit jurisdiction under Article 226 of the Constitution of India. On areference made as regards the correctness of that view in Radhey Shyam& Another Versus Chhabi Nath & OthersMh.L.J. 296alarger Bench of the Hon’ble Supreme Court answered the same byholding that judicial orders of the Civil Court were not amenable to writjurisdiction under Article 226 of the Constitution of India and that thejurisdiction under Article 227 of the Constitution of India which wasdistinct from the jurisdiction under Article 226 of the Constitution ofIndia could alone be exercised. The view as taken in Surya Dev Rai(supra) was overruled. Thereafter in Jogendrasinhjithe questionof maintainability of letters patent appeal was again considered and afterreferring to the judgment of the larger Bench in Radhey Shyamitwas held in paragraph 18 as under: “18.The aforesaid authoritative pronouncementmakes it clear as day that an order passed by a civil courtcan only be assailed under Article 227 of the Constitutionof India and the parameters of challenge have beenclearly laid down by this Court in series of decisionswhich have been referred to by a three Judge Bench inRadhey Shyam which is a binding precedent. Needless toemphasise that once it is exclusively assailable under on 30 06 2021 on 22 03 LPA 63 1010JudgmentArticle 227 of the Constitution of India no intra courtappeal is maintainable.”Thereafter in paragraph 30 it was observed as under: “30.From the aforesaid pronouncements it isgraphically clear that maintainability of a letters patentappeal would depend upon the pleadings in the writpetition the nature and character of the order passed bythe learned Single Judge the type of directions issuedregard being had to the jurisdictional perspectives in theconstitutional context. Barring the civil court from whichorder as held by the three Judge Bench in Radhey Shyamthat a writ petition can lie only under Article 227 of theConstitution orders from tribunals cannot always beregarded for all purposes to be under Article 227 of theConstitution. ... ”It was thus held in paragraph 45.2 that an order passed by the Civil Courtwas only amenable to be scrutinized by the High Court in exercise ofjurisdiction under Article 227 of the Constitution of India which wasdifferent from Article 226 of the Constitution of India and as held inRadhey Shyamno writ could be issued against the order passedby the Civil Court and therefore no letters patent appeal would bemaintainable. Thereafter in Ram Kishan Fauji Versus State of Haryana &others5 SCC 533] it was reiterated by a Bench of three Hon’bleJudges in paragraph 42.3 as under: on 30 06 2021 on 22 03 LPA 63 1011Judgment“42.3.A writ petition which assails the order of acivil court in the High Court has to be understood in allcircumstances to be a challenge under Article 227 of theConstitution and determination by the High Court underthe said Article and hence no intra court appeal isentertainable.”It is thus clear that in view of aforesaid pronouncements in RadheyShyam Jogendrasinhji and Ram Kishan Faujian order passed bythe Civil Court could be scrutinized by the High Court in exercise ofjurisdiction only under Article 227 of the Constitution of India and as nowrit of certiorari could be issued for quashing the order passed by theCivil Court a letters patent appeal challenging such adjudication by thelearned Single Judge would not be maintainable.8.Shri H.D. Dangre learned counsel for the appellant howeversought to contend that as the appellants had raised a jurisdictionalchallenge in the writ petition that was filed under Articles 226 and 227 ofthe Constitution of India and had specifically contended that theExecuting Court had failed to exercise jurisdiction vested in it by invokingArticles 226 and 227 of the Constitution of India the letters patentappeal was maintainable. Heavy reliance was placed on the decision ofthe Full Bench of this Court in M s Advani Oerlikon Ltd.had been dissented by inRadhey Shyamand referred to a Larger Bench. In that context itwas observed as under: “7. .The referring judgment adopts the viewthat the aforesaid observations in Surya Dev Rai are notconsistent with the law which has been consistently followedin earlier decisions. The reference to the larger Bench of thecorrectness of the decision in Surya Dev Rai was because theissues arose out of a properly constituted suit in a civil courtfor the grant of an injunction. The position that the writ ofcertiorari is available to correct errors of jurisdiction on thepart of an inferior Court or tribunal is not affected. That thewrit of certiorari under Article 226 is available to correcterrors of jurisdiction of inferior Court or Tribunals is settledin view of a consistent line of authority reading together HariVishnu Kamath Custodian of Evacuee Property Basappa andSyed Yakoob. The decision of nine judges in Mirajkar in factspecifically cited the judgment in Basappa.”on 30 06 2021 on 22 03 LPA 63 1014JudgmentIt thus becomes clear that the Full Bench has referred to the adjudicationby a Civil Court on one hand and that by an inferior Court or Tribunal onthe other. It was held that the position that a writ of certiorari wasavailable to correct the errors of jurisdiction on the part of an inferiorCourt or Tribunal was not affected. These observations are clearly withregard to errors of jurisdiction of inferior Courts Tribunals asdistinguished from orders of a Civil Court. The ultimate answers given bythe Full Bench are in the context of errors of jurisdiction committed bythe subordinate Court or Tribunal in contradiction with errors by the CivilCourt. The learned counsel for the appellants is not right in contendingthat these observations were applicable even to adjudication by the CivilCourt as that is not the ratio of the judgment of the Full Bench.9.We may note that in paragraph 63 of the judgment of theConstitution Bench in Naresh Shridhar Mirajkar Versus State ofMaharashtrait was held that “certiorari does not lie toquash the judgments of inferior Courts of civil jurisdiction”. Another FullBench judgment of this Court in Motilal Khamdeo Rokde & OthersVersus Balkrushna Baliram Lokhandethrough L.Rs.Chandan s o Balkrishna Lokhande & OthersMh.L.J. 110] has inthe light of the aforesaid law held as under: on 30 06 2021 on 22 03 LPA 63 1015Judgment“8. .. Though the Civil Courts aresubordinate to the High Court the expression “inferiorCourt” is not referable to “Judicial Court”. It is thus clearto us that the judicial orders of the Civil Court are notamenable to a writ of certiorari under Article 226 of theConstitution of India. There are no precedents in Indiafor the High Courts to issue writs to subordinate Courts.The jurisdiction to issue a writ of certiorari under Article226 is distinct from one under Article 227 of theConstitution of India. We therefore hold that a writpetition under Article 226 of the Constitution of Indiachallenging the orders passed by the Judicial Civil Courts subordinate to the High Court and seeking a writ ofcertiorari is not maintainable. ..”In the light of the aforesaid position of law which is nowsettled it is clear that what was impugned in the writ petition filed by thepetitioners was an order passed by the Civil Court in executionproceedings for executing a decree passed by the Civil Court. Though thewrit petition was titled as one under Articles 226 and 227 of theConstitution of India in the light of the law laid down in Radhey Shyam& anotheras followed in Jogendrasinhjiwhich wasreiterated in Ram Kishan Faujiand thereafter applied in Motilal(supra) the letters patent appeal is not maintainable as the jurisdictionexercised by the learned Single Judge was only under Article 227 of theConstitution of India. on 30 06 2021 on 22 03 LPA 63 1016Judgment10.Coming to the submission of the learned counsel for theappellants that the letters patent appeal having been admitted it ought tobe heard on merits instead of deciding the question as regards itsmaintainability it must be noted that the objection to maintainability ofthe letters patent appeal has been raised in view of the law laid down bythe Hon’ble Supreme Court in Jogendrasinhji12 SCC 675]. In the present case theobjection to the maintainability of the letters patent appeal is a on 30 06 2021 on 22 03 LPA 63 1017Judgmentjurisdictional aspect that goes to the root of the matter and we thereforedo not find any reason for not considering the objection raised to themaintainability of the letters patent appeal at this stage despite the factthat the letters patent appeal was admitted in the year 2010.11.As noted above the larger Bench of the Hon’ble SupremeCourt in Jogendrasinhjihas held in clear terms that an orderpassed by the Civil Court is amenable to scrutiny by the High Court onlyin exercise of jurisdiction under Article 227 of the Constitution of India. Inother words no letters patent appeal would be maintainable against ajudgment in a writ petition raising challenge to the order passed by theCivil Court as the jurisdiction exercised by the Single Judge in suchproceedings is only under Article 227 of the Constitution of India. As aresult of the law laid down in Jogendrasinhjiit will have to beheld that the letters patent appeal itself is not tenable. This is for thereason that what was done by the Hon’ble Supreme Court in the saiddecision was stating the correct position of law as regards the nature ofjurisdiction exercisable in writ jurisdiction while entertaining challenge toan order passed by the civil Court.In this regard we may refer to the following observations inparagraph 59 of the decision in Lily Thomas & Others Versus Union ofIndia & Others6 SCC 224]: on 30 06 2021 on 22 03 LPA 63 1018Judgment“59. … It is a settled principle thatthe interpretation of a provision of law relatesback to the date of the law itself andcannot be prospective from the date of thejudgment because concededly the Court does not legislatebut only gives an interpretation to an existinglaw. ...”The observations in paragraph 42 of the decision in AssistantCommissioner Income Tax Rajkot Versus Saurashtra Kutch StockExchange Ltd.Scale 582] are also relevant and the same readthus: “42.In our judgment it is also well settledthat a judicial decision acts retrospectively.According to Blackstonian theory it is not thefunction of the Court to pronounce a ‘new rule’ but tomaintain and expound the ‘old one’. In other words Judges do not make law they only discover or find thecorrect law. The law has always been the same. If asubsequent decision alters the earlier one itdoes not make new law. It only discovers thecorrect principle of law which has to be appliedretrospectively. To put it differently even where anearlier decision of the Court operated for quite some time the decision rendered later on would have retrospectiveeffect clarifying the legal position which was earlier notcorrectly understood.” on 30 06 2021 on 22 03 LPA 63 1019JudgmentIt thus becomes clear that in the light of the decision in Jogendrasinhji(supra) the letters patent appeal is not maintainable. Mere fact that itwas admitted cannot be a reason to preclude the Court for examining thejurisdictional aspect of its tenability especially when the objection raisedis that in law the letters patent appeal itself was not maintainable.12.Accordingly the preliminary objection raised to themaintainability of the letters patent appeal is upheld. The civilapplication is allowed. The letters patent appeal is dismissed as notmaintainable. Needless to state that the appellants are free to seekredressal of their grievances that were raised in the letters patent appealby initiating appropriate proceedings. All questions on merits are keptexpressly open. The parties shall bear their own costs. (SMT.PUSHPA V. GANEDIWALA J.)(A.S. CHANDURKAR J.)APTE 