Priyanvandanben Harishankar ... vs Kirit Jayantilal Kundalia
2021 Latest Caselaw 17149 Guj

    C/SCA/16208/2013                               CAV JUDGMENT DATED: 15/11/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 16208 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed -NO-

to see the judgment ?

2      To be referred to the Reporter or not ?                           -NO-

3      Whether their Lordships wish to see the fair copy                 -NO-
       of the judgment ?

4      Whether this case involves a substantial question                 -NO-

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== PRIYANVANDANBEN HARISHANKAR RAJYAGURU & 5 other(s) Versus KIRIT JAYANTILAL KUNDALIA & 9 other(s) ========================================================== Appearance:

MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4,5,6 DECEASED LITIGANT(100) for the Respondent(s) No. 5 MR JENIL SHAH FOR MR MEHUL S SHAH(772) for the Respondent(s) No. 1,2,3,4 MR MI HAVA(348) for the Respondent(s) No. 10,6,7,8,9 MR.CHANAKYA BHAVSAR(6316) for the Respondent(s) No. 10,7,8,9 NOTICE SERVED BY DS(5) for the Respondent(s) No. 5.1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 15/11/2021

CAV JUDGMENT

Rule returnable forthwith. Learned advocate Mr. Jenil Shah for Mr. Mehul Shah waives service of notice of rule for

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and on behalf of the respondents no. 1 to 5 and learned advocate Mr. MI Hava waives service of notice of rule for and on behalf of the respondents No. 6 to 10.

1. By way of This petition under Article 227 of the Constitution of India and under Order 21 of the Code of Civil Procedure (Hereinafter referred to as "the Code") as well as under Section 53 of the Transfer of Property Act, petitioners have challenged the order passed below Exhibit 61 and Exhibit 67 in Execution Petition No. 24 of 2014 by the Learned 3rd Additional Senior Civil Judge, Rajkot.

2. Short facts of the present case may be referred as under.

2.1 Special Civil Suit No. 656 of 1965 was filed by the present petitioners for cancellation of the sale deed entered into by and between the Karta of Hindu Undivided Family and respondent no.1 in the year 1965. The said suit was dismissed, against which, Civil Appeal No. 6 of 1968 was preferred by the present petitioners, which was also dismissed. The petitioners approached this court by way of Second Appeal No. 618 of 1971 in which compromise was arrived at between the petitioners and respondent No.1. As per the averments made by the petitioners, respondent No.1 agreed to part with 600 square yard land from the suit land to the petitioners as and when the suit land was got converted into non agricultural

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land. It was also mentioned in the terms of the decree that respondent No.1 would part with the share of the land by Grace and Second Appeal prepared by the petitioners was disposed of. The respondents did not get the land converted into non agricultural land and sold the said land to the respondent no.2 in the year 1988. Thereafter the said land was converted into non agricultural purpose in the year 1998. The petitioners filed Execution Application No. 24 of 2004 in view of the amicable settlement arrived at between the parties. The learned trial court was pleased to direct the respondents to part with 600 square yard land to the petitioners. It was observed by the trial court that the land, if available, to be parted with and in alternative if the land was not available, respondents were directed to pay market value of the suit land to the petitioners. The respondents were further directed to file affidavit as to whether any vacant land was available but they did not file any affidavit to that effect. The respondents challenged the aforesaid directions passed by the Civil Court in writ petition No. 12645 of 2009. This Court was pleased to modify the order of the Civil Court in respect of payment according to market value to be paid to the petitioners if the land was not available and to that extent said order was set aside by this court. The submissions of the respondents no. 1 to 5 to the effect that the compromise in Second Appeal No. 618

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of 1971 was not a decree and even if it was a decree, the said was not executable, was not entertained by this Court. That, present petitioners filed a reply-cum-affidavit mentioning that respondents possessed a vacant land of the suit property. The petitioners made an applications vide Exhibit 61and 67 in Execution Application No. 24 of 2004 by submitting the details of the land to the executing court giving names and addresses of the parties held the land and sought a direction to them to handover the possession of the land. It was submitted that even the land was transferred to any other third party, it was null and void under Section 53 of the Transfer of Property Act as the same was done by the respondent no.2 in order to avoid the execution of the decree. The respondents No. 6 to 10 are the third party objectors. The learned Civil Judge rejected both the applications, and therefore, petitioners have approached this Court challenging the validity of the orders passed below exhibit 61 and 67.

3. Heard learned advocate for the petitioners and learned advocates for the respondents.

4. Learned advocate for the petitioners has submitted in his arguments that in an earlier occasion of litigation, this Court, in Special Civil Application No.12645 2009 has specifically held that the decree is required to be executed however in the

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impugned order passed by the Executing Court, the said finding is totally misread and the applications for attachment as well as joining party was wrongly rejected by the learned Executing Court. That, the attachment of the property as prayed in the application Ex.61 was required to be allowed as the respondents, during the pendency of the Execution proceedings, to frustrate the rights of the petitioners, transferred the properties to third party and to protect the interest of the petitioners, the said properties were required to be attached by the Executing Court. That, the subsequent transferers were necessary parties for deciding the questions involved in the execution application and their presence was required. In order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the Execution Application, their presence was required. That, Executing Court has committed grave error in dismissing the application for joining the subsequent transferees by dismissing the application. However, they have purchased the property for breach of consent decree as well as during the pendency of the Executing Proceedings. That, the word "GRACE" is already interpreted by this Court, and therefore, both the applications preferred by the present petitioners were required to be allowed by the Executing Court. That, as per the order passed by the Executing Court,

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respondents have not filed any affidavit as on date. That, respondent no. 7 in breach of the consent decree and during the pendency of the Execution, sold out the properties to the certain persons, and therefore, application Exh. 67 given by the petitioners was required to be allowed by the Executing Court. That, order passed by the Executing Court below Exh. 61 and 67 is not appealable as well as revisionable, and therefore, only remedy available to the petitioners is to approach this Court under Article 227 of the Constitution of India. In Support of his arguments, learned advocate appearing for the petitioners has relied upon the judgments reported in 1963 Supp (2) SCR 55, 2009 2 SCC 294 and 2014 2 SCC 465. Ultimately, it was requested by learned advocate for the petitioners to quash and set aside the impugned order passed below applications Ex. 61 and 67 dated 5th November 2012 in Special Execution Application No. 24 of 2004.

5. From the other side, learned advocate Mr. MI Hava for the respondents No. 6 to 10 has strongly objected the submissions made by learned advocate for the petitioners and argued that present petition itself is not maintainable under Article 226 and 227 of the Constitution of India. As the impugned order dated 5th November 2012 was passed in Execution proceedings under Order 21 of the Code dismissing the application to join respondents no. 6 to 10 as party and

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refusing to direct them to hand over the possession of the sub plot in their possession to the petitioners. That, the impugned order being passed by the learned Civil Court in exercise of powers conferred under the Code being a self-contained code, remedy for challenging orders thereunder is provided in Order 43 Rule 1, Section 100, Section 104 and Section 115 of the Code and petition under Article 227 of the Constitute of India is not an alternative remedy. That, powers under Article 227 of the Constitution of India are for superintendence and administrative control of the Courts and Tribunals sub- ordinate to the High Court. That, present petition is not tenable either under Article 226 or Article 227 of the Constitution of India as jurisdiction conferred to this Court under Article 226 and 227 of the Constitution of India is not an alternative jurisdiction or alternative recourse to Revisional Jurisdiction under Section 115 of the Code. In Support of his arguments, learned advocate for the respondents has relied upon the judgments reported in (2019)9 SCC 538, SCA No. 9192-9194 of 2017; (2015) 5 SCC 423. That, without prejudice to the aforesaid arguments, it is submitted that false averments were made by the petitioners in their applications Exh. 61 and 67 filed in the year 2011 stating that land admeasuring 180 and 480 sqr meter/sqr yards was available with the respondent no.6 to 10 after buying the same from

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respondent no.2 in the year 2000. that, they have constructed the houses and are residing there since the year 2007. That, despite the applications Exh. 61 and 67 rejected by learned Executing Court, petitioners have wrongfully arraigned them as respondents no. 6 to 10 herein which could not have been done without first getting the impugned order set aside by this Court. The petitioners have grossly abused of process of this Court, and therefore, he has requested to dismiss this petition, as they are not necessary or proper party in the Execution Proceedings initiated by the present petitioners to settle any question involved in the Execution Petition.

6. Learned advocate Mr. Jenil Shah appearing for the respondents No. 1 to 5 has adopted the arguments advanced by learned advocate appearing for the respondents No. 6 to 10 so far as application Ex. 67 is concerned and made further arguments that the the petitioners have made prayer in application Exh. 61 which was already made in the Execution Petition. He has further submitted that in the impugned order it is very clearly stated in para 4 that this court is of the view that there is no necessity to attach any land of anybody and there is no necessity to implead any party in the present petition as this court is required to make interpretation of order passed by the Hon'ble high Court in Second Civil Appeal No. 618 of 1971 dated 01.12.1976 during the petition.

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Ultimately, learned advocate for the petitioners No.1 to 5 has requested to dismiss present petition.

7. Having heard learned advocates for the respective parties and dispute pending between the parties, documents produced on record, it appears that the petitioners raised their grievance before the Executing Court that however, settlement was arrived at between the parties in Second Appeal No. 618 of 1971 and they have filed Execution Application for the possession of 600 sqr yard of land, opponents have not handed over the possession of 600 sqr yard land neither they filed any affidavit to that effect till date.

8. In the application Exh. 61, petitioners furnished the measurement of the land of the suit property with the possession of the opponent no.7. They requested that opponents are required to be directed to part with remaining 420 sqr yard land from any part of the revenue survey no. 456 paiki. They requested that land admeasuring 180 sqr yard as prayed in paragraph 8(b) of the application Ex. 61 be attached and possession of the said land may be ordered to be handed over to the petitioners. They further prayed that opponents may be directed to hand over the possession of remaining 420 sqr yard of the land from the revenue survey no. 456 paiki.

9. In the second application Exh. 67, as per the contents of

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the application, they measured further part of same more land and produce the details of the land. As per their submissions, opponent no. 7 very well knew that execution application was pending against him and he was liable to part with 600 sqr yard of land with the decree holders ie., the petitioners and yet in order to defraud the opponent no.7 has sold the said plots to the occupiers. As per the details given in the application, it was further contended that the provisions of Transfer of Property Act are very clear as far as the land that was transferred in order to defraud the decree holders. They requested that the persons named in para 2 of the application may be called before the Court and they may be directed to hand over the possession of the plot they hold to the applicants. The learned Executing Court vide order dated 5th November 2012 dismissed both the applications observing that the plots have been created and some persons are also in possession of the plots as mentioned in the application Exh. 67 and they are bonafide purchasers.

10. Hon'ble High Court had also quashed the order of Executing Court in Special Civil Application No. 12645 of 2009 to the effect that when the land admeasuring 600 sqr yard is not available, then there is no need to pass any order regarding the payment of market value, and therefore, it was viewed that interpretation of the order passed by this Court in

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Second Appeal No. 618 of 1071 was required to be made in the Executing Proceedings. As per the view of the Executing Court, during the pendency of the Execution Petition, no party could be impleaded as party as there is no need to order as to attach anybody's land when the land is not available at present nor any order can be passed to give possession of any part of the land as mentioned in the above stated both the applications.

11. From the record, it transpires that on 9 th November 2009, executing Court was pleased to pass an order below Exhibit 1 directing the opponents to comply with the order passed by this court as per the compromise terms and decree. It was further directed that if the land of 600 sqr yard was available with opponents, possession of the land shall be handed over to the petitioners within a period of 15 days as per the compromise and in alternative, if the plot is not available, opponents shall file an affidavit and pay the prevailing market price to the petitioners within a period of one month. Admittedly, no affidavit was filed by the respondents concerned in the execution proceedings whether the land was available or not. This order dated 9th November 2009 passed below Exh. 1 in Execution Application No. 24 of 2004 was challenged by the respondents before this Court in Special Civil Application No. 12645 of 2009. This Court, was pleased to

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modify the impugned order to the extent to pay the market value of the plot admeasuring 600 sqr yard to the petitioners if land is not available and so far as the rest of the order, it was confirmed mentioning thereby of hand over the possession of the land admeasuring 600 sqr yard as per the compromise arrived at between the parties before this Court ie., in Second Appeal No. 618 of 1971. This Court, in Special Civil Application No. 12645 of 2009 has specifically observed in paragraph no.5, which is as under:

"5. Having considered the contentions raised by the learned advocate for the petitioner, averments made in the petition and the documentary evidence produced on record, it transpires that the Executing Court has after appreciating the contentions raised by both the parties and evidence on record, rightly upheld the decree. It is pertinent to note that on perusal of the order passed by this Court in the Second Appeal, it is clear that since non-

agricultural use permission has been granted, the original defendants were to show grace for the plaintiffs who were minors to set apart 600 sq.yds. of land. Thus, in that view of the matter, the Executing Court has adhered to the order passed by this Court and rightly directed to hand over the land bearing 600 sq.yds. to the present respondents. It is also required to be noted that the respondents in their affidavit-in-reply have categorically stated that the petitioners hold such land in their name and the same has not been controverted by the petitioners. Thus, it transpires that as on today, the land is available with the petitioners. It is

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also pertinent to note that the Executing Court has rightly interpreted the word "grace" referred to in the original decree. Thus, the Executing Court has rightly interpreted the original decree."

12. As per the observations made by this court in the aforesaid Special Civil Application, "the land is available with the petitioners ie., respondents in the aforesaid Special Civil Application, Executing Court has rightly interpreted word "GRACE" referred to in the original decree. Executing Court has adhered to the order passed by this Court and rightly directed to hand over the land bearing 600 sq.yds. to the present respondents". After specific observations of this Court in Special Civil Application No. 12645 of 2009 dated 28.01.2011, subsequent findings of the Executing Court while deciding applications Exhibits 61 and 67 preferred by the present petitioners in a manner that Hon'ble High Court while quashing the order of this Court being Special Civil Application No. 1245 of 2009 to the effect that "when the land admeasuring 600 sqr yard is not available then there is no need to pass any order regarding payment of market value" was not proper. The order of paying market value to the petitioners if the land is not available was only quashed and "not handing over the possession of 600 sqr yard to the petitioners".

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13. In Second Appeal No. 618 of 1971 in consent compromise, this Court was pleased to pass following order on 01.12.1976;

"Decree in terms of the consent terms taken on record. Looking to the parties of litigation and the fact that plaintiff lost in both the lower courts, the concession given to them will now that the compromise is for the benefit of minor. That being the position guardian ad-litem permitted to enter into compromise. In view of the consent terms, subject to the consent terms the appeal is dismissed and decree of the court below is confirmed. No order as to costs."

14. In an application Exh.61, in para 6, it was specifically submitted by the present petitioners that the land admeasuring 180 sqr yard of survey no. 456 paiki 3 was in exclusive possession of the opponent no. 7 and request was made to attach the land and possession may be ordered to be handed over to the petitioners. Further request was made to hand over the possession of 420 sqr yard of the land from revenue survey no. 456 paiki. The respondent no. 7 was the party in the Execution Application No. 24 of 2004 and this fact was never denied by the respondent no.7 before the Executing Court. As per the terms and decree passed in Second Appeal No. 618 of 1971, original respondents no. 8 to 11, who were the owners and in exclusive possession of the suit land agreed as a matter

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of GRACE and goodwill to give to plaintiff no.1 Prataprai Harishankar for himself and on behalf of the plaintiffs, defendant no.1 and their joint Hindu Family (including new born children of defendant no.1) 600 sqr yard of land out of the suit land admeasuring 2 acres and 34 gunthas as and when the suit land is allowed to be converted into non agricultural use by the competent authority. Subsequently, the opponent no.7 transferred some of the land of the suit property as per the details provided by the present petitioners in their application Exh. 67. However, he was very well knew that the execution application was pending against him and he was liable to part with 600 sqr yard land with the decree holders. In order to defraud to petitioners, opponent no.7 in the Execution Application sold the part of the said land to the persons named in para 2 of the application Exh. 67. As per the averments made by learned advocate for the respondents no. 6 to 10, they have purchased the plots from respondent no.2 in the year 2000 and have constructed the houses and residing there since the year 2007.

15. Under Section 53(1) of the Transfer of Property Act, every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. The rights of the transferree in good faith and for consideration may be

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decided in accordance with law at the relevant point of time. As the opponent no.7 was in exclusive possession of the land admeasuring 180 sqr yard of survey number 456 paiki 3 ie., part of the said land, court cannot deny to hand over the possession of the land admeasuring 180 sqr yard to the present petitioners as prayed in the application Exh. 61. Remaining prayer made in para 8(b) to hand over the possession of the remaining 420 sqr yard cannot be granted at this juncture and rightly denied by the Executing Court as there was no specific description given by the applicants in their application Exh.

61.

16. Order 1 Rule 10 of the Code enables the court to add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit which is the wrong person to right person. If the Court is satisfied that the suit has been instituted through a bonafide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done.

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17. Here, in the application Ex. 67, the person who has purchased the suit property is necessary party in order to enable the court to completely adjudicate upon and settle all the questions involved in the Execution Petition which is a part of the suit.

18. Another prayer made by the petitioners in their application Exh. 67 directing them to hand over the possession of the plot cannot be granted without hearing them or permitting them to file their objections.

19. In the judgment relied upon by learned advocate for the petitioners reported in 1963 Supp. (2) SCR 55, Hon'ble Apex court has held in para 28 that "Section 53(1) of the Transfer of Property Act rendered the transaction, voidable at the instance of the creditors if the transfer was effected with the particular intent specified and the statute does not prescribe any particular method of avoidance.

20. In the judgment reported in 2009 2 SCC 294, Hon'ble Apex Court has held that Execution against the consent decree is maintainable and party to the said decree is bound by the principles of estoppel and acquiescence.

21. In the judgment reported in 2014 2 SCC 465, Hon'ble Apex Court has held that if the compromise is validly entered into then the other, then it is required to be enforced.

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22. Learned advocate for the otherside has relied upon the judgment reported in (2019) 9 SCC 538, wherein Hon'ble Apex Court has held that:

"12. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors.1, this Court held that "though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy".

13. But courts should always bear in mind a distinction between

(i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and

(ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasijudicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai2, pointed out in Radhey Shyam Vs. Chhabi Nath3 that "orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.

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14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."

23. In Special Civil Application No. 9192-9194 of 2017, this Court in para 6 and 7 has held that:

6. It is well settled that where statutory framework is created and provided by the Legislature and that such statutory framework contains the provisions of preferring appeal or filing revision, and when such jurisdictions are available, those remedies only have to be invoked, to be only in due regard to the discipline that jurisdiction under Article 227 of the Constitution would not be resorted to. In such circumstances, non- entertainability of the petition under Article 227 of the Constitution stands to apply as a rule. While the maintainability under Article 227 is not to be doubted, the restrainability has to be trusted to be adhered to in all cases.

7. Reverting to the issue involved, the order of the civil court whereby application under Order VII Rule 11, CPC, is rejected, squarely falls within the jurisdictional sweep of Section 115, CPC.

The revisional jurisdiction contemplated under Section 115, CPC, has to be necessarily invoked against such order. Thus the proper remedy against the impugned orders is of filing Revision Application under Section 115, CPC, and not petition under

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Article 227. The present petitions are therefore dismissed.

24. In case of Radhey Shyam and others v. Chhabi Nath and others reported in (2015) 5 SCC 423, Hon'ble Apex Court has held in para 10 and 11 are as under:

10. In T.C. Basappa vs. T. Nagappa[AIR 1954 SC 440], question before this Court was as to the scope of jurisdiction under Article 226 in dealing with a writ of certiorari against the order of the Election Tribunal. This Court considered the question in the background of principles followed by superior courts in England which generally formed the basis of decisions of Indian Courts. This Court held that while broad and fundamental norms regulating exercise of writ jurisdiction had to be kept in mind, it was not necessary for Indian Courts to look back to the early history or procedural technicalities of the writ jurisdiction in England in view of express constitutional provisions. Certiorari was meant to supervise "judicial acts" which included quasi judicial functions of administrative bodies. The Court issuing such writ quashed patently erroneous and without jurisdiction order but the Court did not review the evidence as an appellate court nor substituted its own finding for that of the inferior Tribunal. Since the said judgment is followed in all leading judgments, relevant observations therein may be extracted :

"5. The principles upon which the superior courts in England interfere by issuing writs of certiorari are fairly well known and they have generally formed the basis of decisions in our Indian courts. It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or, as it is now said, an order of certiorari, could issue, but such differences of opinion are unavoidable in Judge-made law which has developed through a long course of years. As is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in England in

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the King's prerogative power of superintendence over the due observance of law by his officials and tribunals. The writ of certiorari is so named because in its original form it required that the King should be "certified of" the proceedings to be investigated and the object was to secure by the authority of a superior court, that the jurisdiction of the inferior Tribunal should be properly exercised [Vide Ryots of Garabandho v. Zamindar of Parlakimedi70IA 129. These principles were transplanted to other parts of the King's dominions. In India, during the British days, the three chartered High Courts of Calcutta, Bombay and Madras were alone competent to issue writs and that too within specified limits and the power was not exercisable by the other High Courts at all. "In that situation" as this court observed in Election Commission, India v. Saka Venkata Subba Rao [(1953) SCR 1144] "the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions 'for any other purpose' being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England."

6. The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the

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nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

7. One of the fundamental principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression "judicial acts" includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin, L.J. thus summed up the law on this point in Rex v. Electricity Commissioners (1924) 1 KB 171]:

"Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."

The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon

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which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person [Vide Per Lord Cairns in walshall's Overseers vs. London and North Western Railway Co. 4 AC 30, 39].

8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2 AC 128, 156]. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.

9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject- matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances [Vide Halsbury, 2 Edn. Vol IX]. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess [Vide Banbury vs. Fuller, 9 Exch 111; R. v. Income Tax Special Purposes Commissioners, 21 QBD 313].

10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure

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is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris, L.J. in the recent case of Rex v. Northumberland Compensation Appellate Tribunal [ (1952) 1 KB 338]. The Lord Justice says:

"It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re- hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown."

11. In dealing with the powers of the High Court under Article 226 of the Constitution, this Court has expressed itself in almost similar terms [ Vide Veerappa Pillai v. Raman & Raman Ltd. (1952) SCR 583] and said: "Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the

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correctness of the decision impugned and decide what is the proper view to be taken or the order to be made." These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under Article 226 of the Constitution".

11. It is necessary to clarify that expression "judicial acts" is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of Election Tribunal and no direct decision of this Court, except Surya Devi Rai, has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified that orders of judicial courts stood on different footing from the quasi judicial orders of authorities or Tribunals.

25. If the subordinate Court exercises a jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order is revisable under Section 115 of the Code. After amendment of Section 115 of the Code w.e.f. 01.07.2002 vide Section 115(1) proviso CPC, the said power is exercised under Article 227 of the Constitution of India as per the principle laid down in Surya Dev Rai reported in (2003) 6 SCC 675. The present petitioners had invoked the jurisdiction of the High Court under Article 227 of the Constitution of India assailing order passed by the Executing Court below application Exh. 61 and 67 dated 5th November 2012 on the foundation that it had failed to exercise the jurisdiction vested in it. The petitioners have correctly approached this Court as per ratio laid down by

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the Hon'ble Supreme Court in Surya Dev Rai case.

26. Accordingly, present petition is hereby partly allowed. The judgments relied upon by the learned advocates for the respondents are not applicable to the facts of the present case.

27. Application Ex. 61 to hand over the possession of the land admeasuring 180 sqr yard shall be granted and as per the details submitted in para 8(b) of the application, possessions of the land shall be handed over to the present petitioners within a period of two months from the date of passing of this order.

28. Application Ex. 67 shall be allowed in part. As per the details provided by the applicants in para 2 of the application, they should be joined as the respondents in the Execution Application No. 24 of 2004.

29. The question to hand over possession of the plot held by the proposed respondents shall be decided by the Executing Court after giving an opportunity by filing their objections and hearing the respective parties. Order passed below applications Ex. 61 and 67 shall be quashed to the extent as discussed above.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) K. S. DARJI