JUDGMENT : ( 1. ) THIS petition under Article 227 of the Constitution of India has been filed by an aggrieved landlord to quash the order of respondent no. 1 dated 13-1-1977 (Annexure -C ). ( 2. ) THIS litigation has had a chequered career covering a period of about 16 years by now and we hope that the order will bring the final curtain upon it. It is a litigation which arose between a landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end, now through respondent No. 2 much to the agony of the landlord. ( 3. ) SHORT facts giving rise to this petition are that the petitioner filed a suit for ejectment against his tenant Chhotabhai bearing Civil Suit No. 26 of 1962 for possession of a portion of Block No. 25 Kibe Colony, Indore, which was decreed by the Court of 6th Additional District Judge, Indore on 31-1-1974. Thereafter, the petitioner filed an application for execution of the decree on 4th March, 1974. On an application by the judgment debtor Chhotabhai made in that behalf, the execution of that decree was stayed by the trial Court to enable him to obtain stay order from the High court. On an appeal being filed against that decree by Chhotabhai an interim stay was granted which was subsequently vacated on 17-1-1975. Thereafter, on 3rd March, 1975 warrant for possession was issued against the judgment debtor Chhotabhai. The warrant could not be executed as the bailiff reported that delivery of possession was obstructed by one Chandubhai, son of judgment debtor Chhotabhai who is also a partner of respondent No. 2 Jitendra Auto Garage and two other persons. By an order dated 11th April, 1975 the executing Court, after hearing the parties including the petitioner decree-holder, Shri M. A. Khan counsel for the judgment-debtor and Chandubhai, passed an order to the effect that regarding the delivery of possession of that portion of the decretal property which was in possession of Chandubhai, the decree holder was entitled to receive actual possession because it was abundantly clear from the material on record that chandubhai was in possession of that portion of decretal property on behalf of the judgment-debtor. However, the petitioner was unsuccessful in executing the warrant by obtaining the actual possession. ( 4. However, the petitioner was unsuccessful in executing the warrant by obtaining the actual possession. ( 4. ) AGAINST this order of the executing Court dated 11-4-1975 respondent No. 2 Jitendra Auto Garage, a partnership firm consisting of one mohammad Yasin and Chandubhai, the son of the judgment debtor filed civil Revision No. 248 of 1975 in this Court. In this revision, apart from the petitioner, the judgment debtor Chhotabhai was also a party. The said revision was dismissed by this Court on merits on 13-1-1976 (Annexure-B ). By that order, the contention of the respondent No. 2 that Jitendra Auto garage is in possession of a part of the suit property in their own right and independently of the judgment debtor was negatived and the revisional Court held as under :- "in the instant case in the light of the entire material on record, the claim of petitioner Chandubhai that M/s Jitendra Auto Garage is in possession of a part of the suit property in their own right and independently of the judgment-debtor is unacceptable on the face of it and cannot be said to have been made in good faith. In such a case, therefore, there is no bar to the issue of a fresh warrant for possession as directed by the impugned order and, in so doing, the executing Court cannot be said to have exercised jurisdiction not vested in it by law. " ( 5. ) AGAINST the order passed in this revision, respondent No. 2 m/s Jitendra Auto Garage through its partner Mohammad Yasin filed petition for special leave to appeal (Civil) No. 677 of 1976 under Article 136 of the Constitution of India with Civil Misc. Petition No. 1654 of 1976 before the Supreme Court which by its order dated 3rd March, 1976 stayed the order passed in the Civil Revision for a period of four weeks to enable the respondent No. 2 to file a substantive suit, if so advised, and that the stay will automatically lapse on the expiry of the aforesaid period of four weeks. It may be noted that in the petition before the Supreme Court, apart from the petitioner, the judgment debtor Chhotabhai, and Chandubhai son of chhotabhai a partner of M/s Jitendra Auto Garage, was made respondents. ( 6. It may be noted that in the petition before the Supreme Court, apart from the petitioner, the judgment debtor Chhotabhai, and Chandubhai son of chhotabhai a partner of M/s Jitendra Auto Garage, was made respondents. ( 6. ) THEREAFTER the respondent No. 2 filed a civil suit in the Court of 4th Additional District Judge, Indore bearing No. 8 of 1976 under Order 21, rule 103 of, the Civil Procedure Code against the petitioner and obtained an ex parte injunction order against the petitioner. The petitioner voluntarily put in his appearance on 22-4-1976 in the said suit and opposed the injunction application. These injunction proceedings any how dragged on till 27-9-76 when the respondent No. 2 withdraw the said civil suit. ( 7. ) AFTER the withdrawal of the suit, the petitioner moved an application on 28-9-1976 to give effect to the order dated 13-1-1976 passed in the civil Revision and also for early hearing. Thereafter on 1 1-10-1976 respondent No. 2 moved an application under Order 21, rule 97 of the Code of civil Procedure which was again vehemently opposed by the petitioner but the same was allowed on 17-11-1976 and the parties were directed to produce evidence in support of their claim. It is not in dispute that against the said order dated 17-11-1976 the petitioner has filed Civil Misc. Appeal no. 41 of 1977 in this Court which is still pending. ( 8. ) THEREAFTER, against the said order dated 17-11-1976 the petitioner also filed a review petition but that application was also dismissed by the lower Court on 13-1-1977 (Annexure- C) which has led to the filing of this petition on 6-8-1977. It is also not in dispute that against this review order dated 13-1-1977, the petitioner has also filed Civil Revision No. 399 of 1977 which has only been ordered to be kept along with this petition. ( 9. ) IT may also be noted that against the original decree passed in civil Suit No. 26-A of 1972 against the judgment-debtor Chhotabhai, he filed Civil First Appeal No. 74 of 1974. In that appeal also an ex parte stay order obtained by the judgment-debtor, was vacated on 17-1-1975. ( 10. ) WE have stated all these facts a little bit in detail in order to appreciate the contentions advanced by the petitioner, who himself has ably argued this petition like an Advocate. In that appeal also an ex parte stay order obtained by the judgment-debtor, was vacated on 17-1-1975. ( 10. ) WE have stated all these facts a little bit in detail in order to appreciate the contentions advanced by the petitioner, who himself has ably argued this petition like an Advocate. It may be interesting to note, at the outset that the respondent No. 2 in his return has averred that though neither this respondent had filed any application before the lower Court nor any order was passed against it, the answering respondent under a grave misconception of fact, erroneously filed Civil Revision No. 248 of 1975 which was ultimately rejected on 13-1-1976. The said revision was incompetent and the decision given therein is of no legal effect. Under the same misconception this respondent had carried the case to the Supreme Court. When the petitioners counsel pointed out the misconception of this respondent, he had to withdraw the Civil Suit No. 8 of 1976. Thus, the entire proceedings referred to above were unfounded and consequently of no legal effect. The petitioner cannot derive any advantage from the said legal proceedings. It has further been averred that "however, as a defect its maintainability was also not brought to the notice of this Honble Court by either of the parties, an order which in law could not be passed, was passed by this Honble Court, the order was therefore of no legal effect. " ( 11. ) ARTICLE 227 of the Constitution of India prior to the 42nd Amendment is as follows :- "227. (1) Every High Court shall have superintendence over all courts and Tribunals through out the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may- (a) Call for returns from such Courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts. (2) Without prejudice to the generality of the foregoing provision, the High Court may- (a) Call for returns from such Courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein; provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed forces. " And the present Article 227 of the Constitution of India as amended by the 42nd amendment is as follows :- "227 (1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction. (2) Without prejudice to the generality of the foregoing provision the High Court may- (a) call for returns from such Courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and (c) prescribe forms in which books entries and accounts shall be kept by the officers of any such Courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein; provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High court powers of Superintendence over any Court or Tribunal constituted by or under any law relating to the Armed forces. (5) Nothing in this article shall be construed as giving to a High court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. (5) Nothing in this article shall be construed as giving to a High court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. " ( 12. ) AS the present petition is filed under the present amended article 227 of the Constitution which came into force on 1-2-1977, the present petition would obviously be governed by the present amended Article 227 of the Constitution, as has been held by the decisions reported in s. D. Ghatge v. State of Maharashtra and another, ( AIR 1977 Bom. 384 (F. B. ).) and Chhaganlal v. Navalkunwar, (A I R 1977 Guj. 181 (F. B. ).), wherein the scope of Article 227 has been fully considered and discussed. Thus, according to the present amended Article, all Courts throughout the territory in relation with which the High Court exercises jurisdiction, have been subjected to the superintendence of the High Court and the power of superintendence includes the power of judicial interference including the administrative control. The primary object of the supervisory jurisdiction of the High Court is that the Courts over which the High Court has superintendence must be kept within the bounds of law whenever such bounds are exceeded the High Court is competent in the exercise of its power under Article 227 of the Constitution to pass an appropriate order. In exercise of these powers, the High Court cannot only quash the order as being without jurisdiction but can also issue further appropriate direction such as for the remand of the case and its decision in accordance with law. It cannot allow an incompetent order or decree which has been brought to its notice to stand on the ground that it now suits the parties not to prolong the litigation between them but to bring down the curtain. It is also settled by the authorities that the jurisdiction of the High Court under Article 227 of the Constitution of India is wider than under Article 226 of the Constitution of India. As observed by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, (A I R 1955 S C 233.) while in a certiorari under Article 226 of the Constitution, the High Court can only annul the decision of the Tribunal it can under the Article 227 do that and also issue further directions in the matter. As observed by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, (A I R 1955 S C 233.) while in a certiorari under Article 226 of the Constitution, the High Court can only annul the decision of the Tribunal it can under the Article 227 do that and also issue further directions in the matter. In other words, in exercise of powers under Article 227 of the Constitution, the High Court cannot only quash an order but also pass an appropriate order if it is without jurisdiction or there is an error of law apparent on the face of record. See Deepika v. Gabriel, ( AIR 1978 All. 27 . ). ( 13. ) WE are aware of the pronouncement of their Lordships of the supreme Court in the latest decision reported in India Pipe Fitting Co. v. Fakruddin, (AIR 1978 SC45.) which has placed reliance on its earlier decision reported in waryam Singh v. Amarnath, (AIR 1954 S C 215.), Nagendra Nath v. Commissioner of Hills Division, (AIR 1958 S C 398.)and Babutmal v. Laxmibai, (AIR 1975 S C 1297.) that power under Article 227 of the Constitution cannot be exercised to upset conclusions of facts how ever erroneous those may be and this power of superintendence is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors which in other words means that under Article 227 of the Constitution, the High court cannot interfere in the case with the conclusion of facts by arrogating to itself the powers of Court of appeal. ( 14. ) CERTIORARI is issued (1) for correcting the error of jurisdiction i. e. when an inferior Court acts without jurisdiction or in excess of it or refuses to exercise it or (2) when the Court acts illegally in the exercise of its undoubted jurisdiction e. g. when it decides without giving opportunity to the parties to be heard or when the Court violates the principles of natural justice or (3) when the order of the inferior Court is shown to suffer from an error of law which is apparent on the face of record, the High Court in issuing the writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. The High Court does not review or re weigh the evidence upon which the determination of the inferior Court purports to be based, the Court demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior Courts. What is done by certiorari is that the offending order or proceedings is put out of way as one which should be used to the detriment of any person. Similarly, the high prerogative writ of mandamus is issued when there is a specific legal right but no special legal remedy for enforcing such legal right. Two conditions must be satisfied for issuance of mandamus. The petitioner must show that he has a legal right to the performance of a legal duty by him against whom mandamus is sought. Consequently there must be a legal duty incumbent on the officer or authority in his or its public character. ( 15. ) IN the present case, in the sequence of event as narrated above, it is abundantly clear from the order passed by this Court in Civil Revision no. 248 of 1975 which has at length fully considered and discussed the whole matter, the said decision is fully binding on the parties and this order has, in fact, merged in the order passed by the trial Court on 11-4-75. The lower Court was bound by this order passed by the superior Court and it had no jurisdiction or authority to side track or flout that order when it passed an order on 17-11-1976 (Annexure- D) by which it directed the parties to lead evidence on an application under Order 21, Rule 97 of the Code of civil Procedure. It further appears that it has not carefully read the decision reported in Bhagatnarain v. Kasturi, (1973 M P L J 899=1973 J L J 798) on which reliance was placed wherein it has been specifically held that as soon as the third person resists or obstructs delivery of possession, the executing Court must stay its hands, until the decree-holder either satisfies it that such a person is bound by the decree or makes an application under Order 21, Rule 97 of the Civil Procedure Code complaining resistance or obstruction. It appears that the lower court forgot to read the words until the decree holder either satisfied that such a person is bound by the decree. The order passed on 13-1-1976 in civil Revision No. 248 of 1975 makes it crystal clear and leaves no manner of doubt that respondent No. 2 was bound by the decree passed in the original suit of which execution was sought. The revisional jurisdiction was invoked by respondent No. 2 itself and when the aid of the High Court sought is invoked on the revisional side, it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Civil Procedure Code circumscribes the limits of that jurisdiction, but the jurisdiction which has been exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the statute, basically and fundamentally, it is the appellate jurisdiction of the High court which is being invoked and exercised in a wider and larger sense. (See Shankar v. Krishanaji, (1970 MPLJ 127 (s C) = A I R 1970 S C 1.) ). ( 16. ) AS a result of the merger of the order of the superior Court, it was also submitted, that the principles of res judicata are attracted in the present case as the controversy between the parties has been finally decided. The principle of res judicata is based on the need of giving a finality to a judicial decision. What it says is that once a res is judicata, it shall not be adjudged. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in section 11 of the Code of Civil Procedure, but even where section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct. This principle of constructive res judicata is applicable to execution proceedings as well. (See Satyadhyan Ghoslial v. Deorajin Debi, (a i r 1960 s c 941.), mohanlal Goenka v. Benoy Kishna Mukherjee, (a I r 1953 s c 65.), Daryao v. State of U. P. , (a i r 1961 s c 1457.) and state of West Bengal v. Hemunt Kumar, (air 1966 s c 1061.) ). ( 17. ) DESPITE this clear cut provisions of law and specific order of the revisional Court dated 13-1-1976, we are satisfied that the respondent No. 1 has virtually refused to look into the order passed by the superior Court in a proper and careful manner. If the first respondent had taken pain to read the revisional order carefully and diligently, he would not have thought of ignoring the same but his refusal is in effect a denial of justice and is further more destructive between one of the basic principles in the administration of justice based as it is in this country on the hierarchy of Courts. If the Subordinate Court refuses to carry out the directions given by superior court in the exercise of its appellate or revisional powers, the result will be the chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning adopted by the first respondent while passing the order dated 17-1-1976 (See Bhopal Sugar Industries v. Income Tax Officer, Bhopal, (a i r 1961 s c 182.) ). ( 18. ) IT was further submitted by the petitioner that in view of the order dated 13-1-1976, the further proceedings initiated by the first respondent by his order dated 17-11-1976 are without jurisdiction or in excess of jurisdiction as he has committed gross illegality in ignoring the revisional order. ( 18. ) IT was further submitted by the petitioner that in view of the order dated 13-1-1976, the further proceedings initiated by the first respondent by his order dated 17-11-1976 are without jurisdiction or in excess of jurisdiction as he has committed gross illegality in ignoring the revisional order. It was further urged that the first respondent having refused to exercise jurisdiction vested by him in law by not issuing a warrant of possession against respondent No. 2 also has committed great illegality which has obviously resulted in failure of justice to the petitioner and under these circumstances this is a fit case where this Court should exercise its powers under Article 227 of the Constitution by annulling the order and also issuing further directions in the matter as it is a settled law that the ambit of the power under Article 227 is so wide as to permit interference in excess where the ends of justice do require. See State of M. P. v. Babulal, (A I R 1977 S C 1718. ). ( 19. ) THE order passed in Civil Revision was fully binding on respondent No. 2 who could not get away from it by adducing factually wrong and illegitimate reasons. It is difficult to believe that under a grave misconception of facts, the respondent No. 2 erroneously filed the Civil Revision and also under the same misconception carried the case to the Supreme court. At this stage, it will not be out of place to note that Shri m. A. Khan, who appeared as a counsel in this case on behalf of respondent No. 2 was also appearing as a counsel in the execution case on behalf of the judgment debtor Chhotabhai. The counsel is expected to help the courts in administration of justice and when the same counsel at one stage appears on behalf of the judgment-debtor and at another stage in the same proceedings on behalf of third persons whose interests are apparently said to be adverse to the judgment-debtor, the inference, in these circumstances, can be safely drawn that the judgment-debtor in collusion with respondent no. 2 was any how drawing to ward off the execution of the decree on some pretext or the other by raising false and inconsistent pleas, supported by affidavits in the same case. 2 was any how drawing to ward off the execution of the decree on some pretext or the other by raising false and inconsistent pleas, supported by affidavits in the same case. This has naturally resulted in flagrant violation in the principles of natural justice and ultimately deprived the decree-holder of realising the fruits of its decree who is thus forced to run down here and there, resulting in further delay. Where a party who files an appeal or revision from the order of the trial Court and prosecutes the appeal or revision which ultimately are decided in favour of the other party, such person cannot be allowed to urge at the time of the execution of the order that he is not bound by the decision as he was not a party at the original stage. Having taken a chance of a favourable decision, when defeated such party cannot be allowed both to approbate and reprobate as has happened in the present case. ( 20. ) THIS takes up to the objection of the respondent No. 2 that this court could not exercise its powers under Article 227 of the Constitution when alternative remedy is available to the petitioner and of which he has availed of but considering the facts and circumstances of the case and the inordinate delay for all these years, in our opinion, this is a fit case where in exercise of those powers of superintendence, we must keep the lower court within its bounds and quash its order dated 17-11-1976 (Annexure -D)and consequently its subsequent order dated 13-1-1977. ( 21. ) AS regards the contention about mesne profits, this is a matter which cannot be inquired into a writ petition and the proper remedy for the petitioner is to move the executing Court for determining the quantum of mesne profits. ( 22. ) THE petitioner has raised a further grievance that the respondent no. 1 by ignoring and flouting the orders of the revisional Court has committed contempt of Court. Here it is worth mentioning that though the petitioner has made such type of serious allegation against respondent No. 1 shri S. S. Trivedi, 6th Additional District Judge, Indore. He has not chosen to file any return by denying those allegations nor has he put in his appearance by himself or through any counsel when the case was heard. Here it is worth mentioning that though the petitioner has made such type of serious allegation against respondent No. 1 shri S. S. Trivedi, 6th Additional District Judge, Indore. He has not chosen to file any return by denying those allegations nor has he put in his appearance by himself or through any counsel when the case was heard. However, we are not persuaded to agree that there has been any deliberate disobedience of the order passed by the revisional Court on the basis of which any action for contempt is called for against respondent No. 1. However, we are constrained to observe that the first respondent has unfortunately failed to consider the revisional order by applying his mind in a judicious manner and if he had done so, all this delay, harassment and hardship suffered by the petitioner, would have been avoided. ( 23. ) IN the result, this petition is allowed. The order passed by the first respondent dated 17-11-1976 (Annexure -D) is quashed and consequently the subsequent order dated 13-1-1977 (Annexure -C) is also set aside and it is ordered that no inquiry under Order 21, Rule 97 of the Civil Procedure code now being necessary, a warrant of possession shall be issued against respondent No. 2 also. The petitioner shall be entitled to his costs from the respondent No. 2 Jitendra Auto Garage. The security amount deposited by the petitioner shall be refunded to him. Petition allowed.