Subjiba Lakhubha W/O Bhikhubha ... vs Ranchhodji Sulatanji Jadeja ...
2023 Latest Caselaw 7353 Guj

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 17712 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

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

========================================================== SUBJIBA LAKHUBHA W/O BHIKHUBHA HAMIRJI RATHOD (EXPIRED) Versus RANCHHODJI SULATANJI JADEJA (EXPIRED) ========================================================== Appearance:

MR DP KINARIWALA for MR NIKUNJ D BALAR(2763) for the Petitioners JIGNESHKUMAR M NAYAK(8558) for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 4,5,6

========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 05/10/2023

CAV JUDGMENT

1. Rule. Learned advocate Mr. JM Nayak waives service of notice of rule for the respondent No.2.

2. By way of this petition under article 227 of the Constitution of India, the petitioners prayed to quash and set

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aside the order dated 13.9.2021 passed by the learned 2 nd Addl. Civil Judge, Anjar below application Exh.1 in Execution Petition No.2 of 2006.

3. The parties are referred to as per their original status before the learned Court below, for the sake of brevity.

4. Briefly stated facts are that the deceased plaintiff Mayaba @ Keshaba Lakhubha filed Special Civil Suit No.6 of 2000 before the learned Civil Court, Anjar seeking relief of cancellation of sale deed and permanent injunction on 15.3.2022. In the suit, it is claimed by the deceased plaintiff that her husband late Lakhubha was holding title and possession of agricultural land bearing survey No.178, new survey No.197 and survey No.179, new survey No.199 admeasuring 42 acre situated at village Khedoi, Tal: Anjar, Dist: Kachchh (in short "disputed land"). It is claimed by the deceased plaintiff that she holds 1/4th share in the disputed land being both the survey numbers. It is the further case of the plaintiffs that the defendant No.1 has sold disputed land to the defendant No.2 by registered sale deed No.551 dated 4.4.1995 without consent of the plaintiff. Inter alia on the ground, the plaintiff has filed the suit for declaration of her share in the disputed land and cancellation of the sale deed dated 4.4.1995 being serial No.551. Part of the land is subsequently sold in favour of the defendant No.3 on 7.11.1997.

5. In background of above averments, the plaintiff has prayed for the following relief:- (translated into English) "(1) Be pleased to issue summons for compelling attendance of the

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defendants before Ld. Court.

(2) Be pleased to declare that defendant no. 1 and 2 do not have any right to sell the field, namely "Raymal Rana Valo Patdo", bearing old Survey No. 178, 179, situated at mouje village Moti Khedoi, Taluka - Anjar-Kachchh.

(3) Be pleased to declare that defendant no. 2 and 3 have illegally purchased aforesaid disputed field.

(4) Be pleased to direct defendant no. 4 and 5 not to mutate entry in the name of any other person in respect of aforesaid field, and not to certify the aforesaid entry if already mutated, and to declare aforesaid entry as illegal if already certified. (5) Be pleased to declare that sale deeds bearing registration no.

551 dated 04/04/1995 and registration no. 3249 dated 07/11/1997 executed by defendant no. 1 and 2 respectively at the office of Sub-Registrar, Anjar, deserve to be revoked and the same are not binding on the plaintiff.

(6) Be pleased to grant a decree of permanent injunction in favour of the plaintiff and against the defendants permanently restraining them, their servants, agents, relatives, etc. from alienating, mortgaging to anyone or interfering with the peaceful possession of the disputed land, namely "Rana Raymalvalo Patado" bearing old Survey Nos. 178, 179, admeasuring acres 42-00, which is presently 36-32 gunthas, situated at mouje Moti Khedoi, by the plaintiff."

6. At the conclusion of the trial, the learned trial court passed the following judgment and decree:- (translated into English) "(1) Suit of the Plaintiff is partly allowed.

(2) It is held that Defendants Nos.1 and 2 in this case do not have any right of selling 1/4thth share of the Plaintiff in the suit land.

(3) The Sale deeds executed by Defendants Nos.2 and 3 are hereby held as revoked qua the ¼ th share of the Plaintiff in the suit land.

(4) The registered Sale-deed No.551, dated 04/04/1995 and that of the registered sale-deed No.3249, dated 07/11/1997 are hereby held as revoked qua the ¼ th share of the Plaintiff in the suit land. Accordingly, it is further held that aforesaid Sale-deeds do not bound to the Plaintiff.

(5) The Defendants nos.1, 2 and 3 are permanently restrained from making any sale, mortgage, gift or any other transactions regarding ¼th share of the Plaintiff in the suit land. Further, permanent injunction is also granted against Defendants nos.1, 2 and 3 restraining them from illegally taking over possession of the ¼ th share of the suit land from the Plaintiff.

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(6) As the Defendants nos.4, 5 and 6 are the Government Officers, as the Plaintiff is not legally entitled to get relief against them in the matter, the suit of the Plaintiff against Defendants nos.4, 5 and 6 is completely dismissed.

(7) Keeping in view the facts and circumstances of the case, all parties concerned are directed to bear their own costs.

(8) Decree may be executed on the basis of the Order."

7. Above judgment and decree has not been challenged by either of the party. Subsequently, Execution Petition No.2 of 2006 was filed before the learned Civil Court, Anjar, claiming following relief:- (translated into English) "(10) What kind of assistance from the Court is required? It is prayed to issue the warrant to the judgment debtors in this Execution Petition i.e. defendant nos. 1,2 and 3 in the original suit for delivering/handing over the quiet, vacant and actual possession of the land as specified in the decree passed in the original suit, to the decree holder. It is prayed to appoint Registrar, Anjar Court, Talati, Khedoi, Mamlatdar, Anjar and officer of D.I.L.R. for dividing the land into four equal shares and to deliver/hand over actual 1/4thth share as mentioned in the decree to the decree holder with the assistance of police officer, if required. Be pleased to order the execution of the decree by committing judgment debtor to the Civil Prison, if required, and recovery of all the expenses by selling movable and immovable properties of defendants and to award decretal amount to the decree holder by obtaining possession of the properties as shown by the decree holder at the time of seizure and selling the same."

8. On 13.9.2021, the learned Additional Civil Judge, Anjar dismissed the execution petition, inter alia holding that the plaintiff, who has filed execution petition, has asked the relief in execution, which has not been granted by the Civil Court in judgment and decree under execution. Executing Court thus, refused to execute judgment and decree and denied to grant relief prayed in execution petition.

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9. Being aggrieved and dissatisfied With the aforesaid order, the plaintiff is before this Court, by way of this petition.

10. Heard learned advocate Mr. DP Kinariwala for learned advocate Mr. Nikunj Balar for the petitioners and learned advocate Mr. JM Nayak for respondent No.2. Though served, remaining respondents did not choose to appear.

11. It is sought to be submitted by learned advocate Mr. Kinariwala that the learned Executing Court has committed a grave error in dismissing the execution petition. He would further submit that the court was required to give effect to the judgment and decree passed in Special Civil Suit. He would further submit that in executing the judgment and decree passed in the Special Civil Suit, if the court finds that any party is in possession of the disputed land, the court was empowered to remove such resistance to the judgment and decree by resorting to the power vested under Order 21 Rule 97 of the Civil Procedure, 1908 (in short "CPC"). He would further submit that in the special civil suit, it is held by the concerned Civil Court that plaintiff has 1/4th share in the disputed land and the defendant Nos.1 and 2 have no authority to sell the disputed land to the extent of the share of the plaintiff. He would further submit that the sale of the disputed land as far as share of the plaintiff is concerned, took place in favour of the defendant Nos.2 and 3, has been declared null and void by the concerned Civil Court. That impliedly shows that the defendants of the suit and

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judgment debtor in the execution petition were liable t hand over permission of 1/4th share of the disputed land, but they were resisting to the possession of 1/4th share of the disputed land. The Executing Court was required to give effect to judgment and decree and had to take possession of the disputed land as far as share of the plaintiff involved in the disputed land. But the court below has totally failed to understand this aspect and erroneously held that the decree is in-executable and as such, erred in dismissing the execution proceedings.

12. In support of his submission, learned advocate Mr. Kinariwala has relied upon recent judgment of the Hon'ble Apex Court in case of Ved Kumari (Dead) through LR Dr. Vijay Agarwal Vs. Municipal Corporation of Delhi, through its Commissioner reported in 2023 (8) JT 289, more, particularly, paragraph 10 to 12, and 15, which reads as under:-

"10. It is also important to notice that throughout the course of the execution proceedings, no resistance was offered by any purported stranger/encroacher to the decree. In the absence of such resistance, the Executing Court had no occasion to invoke Order XXI, Rules 97 to 101, at the instance of the decree- holder or otherwise. Unless, this procedure is adopted, the Executing Court could not have closed the execution proceedings by observing that the decree is inexecutable.

11. In "Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr." (1997) 3 SCC 694, this Court has observed that Order XXI of the CPC lays down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Referring to its earlier judgment in the matter of "Bhanwar Lal vs. Satyanarain" (1995) 1 SCC 6 this Court concluded thus:

'11. In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that Respondent 1 decree-holder's application dated 6-5-1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the

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appellant and others under Order 21, Rule 97 CPC and had to be adjudicated upon as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 101 and Order 21, Rule 98. In this connection the Court had also to follow the procedure laid down by Order 21, Rule 105 which enjoins the executing court to which an application is made under any of the foregoing rules of the order to fix a date of hearing of the application. As the executing court refused to adjudicate upon the obstruction and the claim of the appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law. The High Court in revision also committed the same error by taking the view that such an application was not maintainable. It is of course true as submitted by learned counsel for the decree-holder that in para 4 of the judgment under appeal the High Court has noted that there was some discrepancy about the khasra number. But these are passing observations. On the contrary in the subsequent paragraphs of the judgment the High Court has clearly held that such an application by the objector was not maintainable and his only remedy was to move an application under Order 21, Rule 99 after handing over possession and consideration of objection to delivery of possession by a stranger to the decree at any earlier stage was premature. It must, therefore, be held that neither the executing court nor the High Court in revision had considered the objection of the appellant against execution on merits. Consequently the impugned judgment of the High Court as well as the order of the of 1990 dated 15-2-1996 are quashed and set aside and proceedings are remanded to the Court of Munsif II, Munger to re-decide the application of Respondent 1 decree-holder dated 6-5-1991 by treating it to be one under Order 21, Rule 97 for removal of obstruction of the appellant and after hearing the decree- holder as well as the appellant to adjudicate the claim of the appellant and to pass appropriate orders under Order 21, Rule 97, sub-rule (2) CPC read with Order 21, Rule 98 CPC as indicated in the earlier part of this judgment.'

12. Similarly, in "Shreenath & Anr. Vs. Rajesh & Ors." (1998) 4 SCC 543 this Court observed thus:

'10. Under sub-clause (1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at

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some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule

97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger.'

15. In view of the settled legal position, as noted (supra), it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree- holder's right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed."

13. Upon such submission, learned advocate, Mr. Kinariwala

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would submit to allow this petition and to quash and set aside the impugned order and to restore the execution petition for further proceedings.

14. Per contra, learned advocate Mr. JM Nayak for respondent No.2, referring to page 96 to 99 of the compilation, would submit that the sale of the disputed land has taken multiple time prior to and pending the suit, the possession has been changed to the purchasers and they are not the parties to the suit and this has not been noticed by the court while passing the judgment and decree. He would further submit that on plain reading of the judgment and decree passed in the Special Civil Suit, it appears that the concerned Civil Court has not granted the relief of partition or separate possession in favour of the plaintiff though it is held by the concerned court that selling of the agricultural land as far as 1/4th share of the plaintiff is concerned is not legal. But, the court has not passed judgment and decree to hand back the possession of those part of the land and more particularly, in absence of relief of partition or specific performance of the share. He would further submit that in the suit, the plaintiff has not asked for the relief of partition of the property nor has she asked the relief of possession. He would further submit that the plaintiff has asked for the possession of the property first time in execution proceedings, which is not permissible and thus, learned Executing Court has rightly turned down the relief. In view of this submission, he would submit to dismiss this petition.

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15. No other and further submissions are made.

16. Having heard learned advocates for both the sides and on perusal of the impugned order, what appears that the learned Civil Court has decreed the suit in favour of the plaintiff, but to the extent that the plaintiff holds 1/4th share in the agriculture land being subject matter of the suit and further declared that sale of 1/4th share cannot be affected without consent of the plaintiff. The sale deeds dated 4.4.1995 and 7.11.1997 for 1/4th share of the plaintiff have been declared null and void as well as not binding to the plaintiff and further perpetual injunction is granted against the defendant Nos. 1 to 3 for not to transfer 1/4th share of the plaintiff contained in the disputed land perpetually. The suit against defendant Nos.5 and 6 was dismissed totally. Thus, apparently, it is judgment and decree granting declaration and perpetual injunction. The judgment and decree impugned does not state for separate possession and to hand back the said possession.

17. The simple and plain reading of the judgment and decree passed in the special civil suit would expose the aspect that the concerned Civil Court has not passed a decree for partitioning the disputed land nor has the concerned Civil Court ordered to handover the possession of the share of the plaintiff said to have been contained in the disputed land. To be noted that concerned civil Court in impugned judgment and decree has not identified even which piece of land is forming 1/4th share of the plaintiff.

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18. On perusal of the relief claimed by the plaintiff in the execution petition, it appears that the plaintiff has asked for the relief to handover her the peaceful, vacant and open possession of the disputed land. It is further claimed by the plaintiff that by appointing the DILR officer, the disputed land may be divided into four different shares and 1/4th share from the said land be given to her. Seemingly, it appears that the plaintiff, by way of execution, tried to get the relief, which is not forming part of the judgment and decree. It is well settled principle of law that the Executing Court cannot go behind the decree nor can it interpret judgment and decree except in case of ambiguity. In the present case it appears that the plaintiff tried to get relief in the execution petition, which is not granted in judgment and decree. The Executing Court is expected to execute decree as it stands, it cannot go behind the decree and grant the relief which is not granted in the judgment and decree. What appears that in order to get desired relief, the petitioner has conveniently sculpted and shaped the relief in execution proceedings. Relief granted in impugned judgment and decree and relief asked in the execution proceedings are quite different and distinct. As noted, purpose of execution is to execute the judgment and decree as it stands.

19. The useful reference can be taken from the judgment of the Hon'ble Apex Court in case of Sanwarlal Agrawal and others Vs. Ashok Kumar Kothari and others reported in (2023) 7 SCC 307, more particularly Para 16,17 and 21, which reads as under:-

"16. This Court has time and again cautioned against the Execution Court adopting such an approach. In Topanmal

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Chhotamal v. Kundomal Gangaram,9 a three-judge bench held as follows:

"It is a well-settled principle that a Court executing a decree cannot go behind the decree: it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit".

17. Yet again, in Meenakshi Saxena Vs. ECGC Ltd. reported in (2018) 7 SCC 479. it was reiterated that

"The whole purpose of execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree." 9 Topanmal Chhotamal v. Kundomal Gangaram, AIR 1960 SC 388."

21. With respect to Rajinder Kumar v. Kuldeep Singh reported in (2014) 15 SCC 529, the counsel has placed reliance on the following paragraph:

"21. If the suit for specific performance is not decreed as prayed for, then alone the question of any reference to the alternative relief would arise. Therefore, there is no question of any ambiguity. As held by this Court in Topanmal Chhotamal v. Kundomal Gangaram [Topanmal Chhotamal v. Kundomal Gangaram, AIR 1960 SC 388, p. 390, para 4:"4. At the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the court would certainly be entitled to look into the pleadings and the judgment...."] and consistently followed thereafter, even if there is any ambiguity, it is for the executing court to construe the decree if necessary after referring to the judgment. If sufficient guidance is not available even from the judgment, the court is even free to refer to the pleadings so as to construe the true import of the decree. No doubt, the court cannot go behind the decree or beyond

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the decree. But while executing a decree for specific performance, the court, in case of any ambiguity, has necessarily to construe the decree so as to give effect to the intention of the parties. Thus, there is no question of any alternate relief regarding the damages, etc. in the present case since the suit for the specific performance for the conveyance of the property has been decreed."

This elucidation of the law is unexceptionable. It is undeniable that an Executing Court can construe a decree if it is ambiguous. However, as in the facts of the case herein, this cannot result in additions (to the terms of the consent, embodied in the email dated 28.03.2019) which were not agreed upon by the parties, since the decree was drawn on by consent of both parties at admissions stage itself. Both the single judge and Division Bench of the High Court have interpreted the appellants' silence (manifest in their not filing any written statement) as acquiescence to the inclusion of the loan amount, which, is although worthy of adverse inference, cannot be the reason to justify expansion of the decree."

20. At the cost of repetition, it can be said that the Executing Court can construe a decree if it found ambiguous, but it cannot make any addition or alteration in the relief, which is not granted by the civil court in a judgment and decree sought to be executed. The decree as it stands is binding and conclusive between the parties to the suit and to be executed. The purpose of execution is to execute the verdict of the court. The Executing Court is concerned with the execution part of the judgment and decree and nothing else.

21. In the present case, the plaintiff attempted to ask the relief under the guise of executing the decree, which is not granted in judgment and decree. This is impermissible and rightly has been turned down by the learned court below.

22. As far is ratio laid down in the case of Ved Kumari (Dead)

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through LR Dr. Vijay Agarwal (supra) is concerned, there is no doubt on the binding precedent that even if the resistant is not offered by any purported stranger/encroacher to the decree, the court is bound to execute the decree against any person and may remove obstructions or resistance in exercise of power under Order 21 Rule 97 to 101 of the CPC. But, the plaintiff cannot take shelter of Order 21 Rule 97 to 101 of the CPC to get the relief which is not granted under judgment and decree sought to be executed. Reading para 15 of the said judgment, it appears that the Executing Court dismissed the execution petition by treating decree to be inexecutable on the ground that the decree holder has lost the possession to third party encroacher. The Hon'ble Apex Court disallowed the finding that because the possession is now lying with the third party, the decree is inexecutable. The Hon'ble Apex Court held that provisions of Order 21 Rule 97 to 101 of the CPC clearly applies to such proposition and third party cannot be given premium even if he enjoys the possession of immovable property from the judgment debtor and because the judgment holder has lost the possession.

23. In the present case, the facts are all together different. In this case, the plaintiff by way of execution, attempted to get the relief under the guise of execution, which is not granted in the judgment and decree under execution. The court below has rightly declined to execute a decree on the grounds stated in the impugned order.

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24. In limited jurisdiction under Article 227 of the Constitution of India, the plaintiff has failed to make out a case that the court below could not have taken the approach which a reasonable prudent person would take. The approach of the learned court below denying execution is legal, just and proper and on its face, it does not require to be interfered in the jurisdiction to be exercised sparingly under Article 227 of the Constitution of India.

25. Before parting with the judgment and order, let refer the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India, which is enlightened in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in para 15 and 16, held as under:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice.

The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or

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tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

26. For the foregoing reasons, no case is made out to interfere with the impugned order and a petition is accordingly dismissed. Rule discharged. Interim relief, if any, stands vacated forthwith.

(J. C. DOSHI,J) SHEKHAR P. BARVE