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2018 DIGILAW 693 (ORI)

Raicharan Das v. Pramila Kumari Das

2018-07-30

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R.SARANGI, J. - This intra-Court appeal has been filed by the appellants challenging the judgment and order dated 02.05.2018 passed by the learned Single Judge in W.P.(C) No.19175 of 2017 directing the executing court to see that the execution proceeding stands culminated with fruitful execution of the decree in accordance with law as expeditiously as possible under a compliance report to the writ Court by end of July, 2018. 2. The factual matrix of the case, in hand, is that one Basanti Kumari Das, wife of appellant No.1 and mother of appellants no.2 to 4, being the plaintiff, filed T.S.No.154 of 2000 against her sister Pramila Kumari Das, defendant-respondent no.1, seeking for declaration of the registered sale deed dated 10.05.1988 as nominal and void with further prayer to direct respondent no.1 to vacate the suit house in her favour and for injunction. After due adjudication, upon hearing the parties, the trial court dismissed the suit and also dismissed the counter claim advanced by respondent no.1 for passing a decree directing the plaintiff to vacate the suit house. 3. Both plaintiff and defendant carried first appeal bearing R.F.A. No.31 of 2011 and R.F.A. No.32 of 2011 respectively under Section 96 of the Code of Civil Procedure. The first appellate Court, while confirming the dismissal of the suit, decreed the counter claim advanced by defendant-respondent no.1. Therefore, the unsuccessful plaintiff had carried two appeals under Section 100 of the Code of Civil Procedure, which stood numbered as R.S.A. No.38 of 2012 and R.S.A. No.61 of 2012. This Court by judgment dated 22.04.2015, while answering the substantial questions of law formulated, dismissed both the appeals preferred by the plaintiff. During pendency of the appeal, the plaintiff died and her legal representatives were impleaded as parties. The legal representatives of the plaintiff approached the apex Court by filing SLP No.28108 of 2015 and SLP No. 28109 of 2015 praying for leave to file appeals. The apex Court, upon hearing learned counsel for the plaintiffs, refused to grant leave to the plaintiffs and declined to accept the appeals and accordingly dismissed those Special Leave Petitions by order dated 12.10.2015. 4. The defendant-respondent no.1, after the judgment passed in the first appeal decreeing her counter claim, levied the execution proceeding on 13.02.2012. The apex Court, upon hearing learned counsel for the plaintiffs, refused to grant leave to the plaintiffs and declined to accept the appeals and accordingly dismissed those Special Leave Petitions by order dated 12.10.2015. 4. The defendant-respondent no.1, after the judgment passed in the first appeal decreeing her counter claim, levied the execution proceeding on 13.02.2012. The second appeals, being filed by the unsuccessful plaintiff and on her move this Court, shortly after the initiation of execution proceeding, put a break on its further progress. After disposal of the second appeals by judgment dated 22.04.2015, followed by the decrees, the execution proceeding initiated by the defendant-decree holder stood up for further progress. In view of death of the sole plaintiff and as her legal representatives were pursuing the second appeals, as also the Special Leave Petitions, they were made parties in the execution proceeding and noticed to give an opportunity to file objection if any. It is only appellant no.3-Maneeta Das, one of the daughters of the original plaintiff in execution proceeding submitted that in the decree the decreetal properties having been described in terms of the records of the sabik settlement, although with the boundary description, the said decree as it stands cannot be executed at this point of time in view of changes in the position of the land records assigned with different plot number, khata number and also by change of mouza in the meantime. 5. The litigation between the parties has been going for about 18 years. The judgment and decree have attained finality after being carried to the Supreme Court with the dismissal of the Special Leave Petition, refusing to grant leave to assail the common judgment dated 22.04.2015 passed by this Court in R.S.A. No.38 of 2012 and R.S.A. No.61 of 2012. The decree of delivery of possession as passed in favour of defendant-respondent no.1 in her counter claim even though has firmly stood so, after being tested by the higher Courts, it still awaits execution so as to provide the fruit of the decree to respondent no.1, the decree holder. This shows that indeed the difficulties for the decree holder have not been removed after the decree has attained finality but in real and practical sense those have recommenced after the decree attaining finality even being tested by the apex Court. This shows that indeed the difficulties for the decree holder have not been removed after the decree has attained finality but in real and practical sense those have recommenced after the decree attaining finality even being tested by the apex Court. Therefore, in Execution Case No.3 of 2012 arising out of Title Suit No.154 of 2000, vide order dated 03.10.2016, learned executing court has said at the end that without ascertaining the decreetal property as described in erstwhile mauza Bhapur corresponds to the land under the khata number and plot number as assigned in the hal settlement in mauza Paramhanspur, there can be no execution of the decree as prayed for by the decree holder by delivery of possession of the property by evicting the appellantsjudgment debtors. 6. Challenging the said order dated 20.06.2017 passed in Execution Case No.3 of 2012 by the learned Civil Judge (Senior Division), Berhampur, defendant-respondent no.1 approached this Court by filing W.P.(C) No.19175 of 2017. Learned Single Judge, by judgment and order dated 02.05.2018 disposed of the said writ petition directing the executing court to take all such effective steps, as provided in law, to see that the execution proceeding stands culminated with fruitful execution of the decree in accordance with law as expeditiously as possible under a compliance report to the said Court by end of July, 2018, hence this appeal. 7. Mr. S.P. Mishra, learned Senior Counsel appearing along with Mr. L.K. Moharana, learned counsel for the appellants contended that the judgment dated 02.05.2018 passed by the learned Single Judge in W.P.(C) No.19175 of 2017 is without jurisdiction. As such, learned Single Judge has exceeded his jurisdiction in deciding the writ petition, which was filed under nomenclature as one under Article 226 of the Constitution of India. If learned Single Judge construed the same, in view of nature of order passed by the learned Civil Court, comes under the ambit and scope of the supervisory jurisdiction of the Court under Article 227 of the Constitution of India, then he ought to have directed for fresh stamp reporting and nomenclature as Civil Miscellaneous Petition (CMP), in view of notification dated 24.10.2013 published in the Official Gazette on 19.12.2013. Had nomenclature of the same been changed to CMP pursuant to such notification, then learned Single Judge would not have decided the matter, as it was not assigned to him, and the roster having been changed learned Single Judge could have refrained from proceeding further and the matter could have been referred to the assigned Bench as per the roster of the Court. To substantiate his contention, he has relied upon judgment of the apex Court in Surya Dev Rai v. Ram Chander Rai*, (2003) 6 SCC 675 and the judgment of this Court in Darasingh Kumbhar v. State of Orissa, AIR 2005 Orissa 51. 8. We have heard Mr. S.P. Mishra, learned Senior Counsel appearing for the appellants and perused the record. At the outset, this Court made a query whether the writ appeal is maintainable against the order passed by the learned Single Judge arising out of a civil proceeding or not. Mr. S.P. Mishra, learned Senior Counsel appearing for the appellants, while answering the query, contended that it is not a question of maintainability, rather the consideration has to be made by learned Single Judge, having held to be exercise of power under Article 227 of Constitution of India, with all fairness that the nomenclature of the writ petition should have been changed to CMP, in view of notification published in Official Gazette, and the matter should have been directed to be placed before the assigned Bench for adjudication. 9. The factual matrix, as delineated above, is undisputed one. As such, the litigation between the two sisters has been continuing more than 18 years. It was started from Civil Judge (Sr. Division), Berhampur and finally ended in dismissal of the appeal filed by the plaintiffs in the apex Court. When fruit of decree was going to be enjoyed by defendant-respondent no.1 by filing execution proceeding, the plaintiff-appellants created disturbances. Be that as it may, the question of jurisdiction has been considered by the learned Single Judge in paragraph-8 of the impugned judgment, which reads thus:- “8. It is true to say that the application filed before this Court has been labeled as one under Article 226 of the Constitution and as such has been nomenclature as W.P.(C). Be that as it may, the question of jurisdiction has been considered by the learned Single Judge in paragraph-8 of the impugned judgment, which reads thus:- “8. It is true to say that the application filed before this Court has been labeled as one under Article 226 of the Constitution and as such has been nomenclature as W.P.(C). The position of law is well settled that labeling of the application even if is wrong, the court instead of rejecting the same on said technical ground, can ignore the same and by treating it to be an application under the proper provision of law, decide the same in accordance with that correct provision of law as applicable within its scope and ambit. The rider however remains that the court must possess the jurisdiction to decide the application in accordance with the proper provision of law. The Hon’ble Apex Court in the case of Radhey Shyam and another vrs. Chhabi Nath and others, AIR 2015 SC 3269 has taken note of the prevailing practice of filing the application invoking the writ jurisdiction of this Court under Article 226 of the Constitution in the matter of challenge to the order of the civil courts and tribunals though the examination relating to challenge is strictly required to be done within the ambit and scope of the supervisory jurisdiction of the Court under Article 227 of the Constitution. In that view of the matter, in the interest of justice, ignoring the technical objection as to present application’s labeling and nomenclature, let me proceed for examination of the matter relating to the challenge to the impugned order of the executing court, within the ambit of the supervisory jurisdiction as provided under Article 227 of the Constitution and its scope of interference. This Court thus now is to see as to whether the executing court in passing the order has acted within bounds of its authority or not; whether by such order gross miscarriage of justice has occasioned necessitating correction of such error in order to prevent flagrant violation of justice or that the order has been passed in breach of the provision of law warranting interference so as to be set at naught and brought on to the right path. It is not out of place to state that the opposite party nos. It is not out of place to state that the opposite party nos. 4 and 5 having entered appearance in this case since in November, 2017 and March, 2018 respectively have failed to immediately raise such objection as to the nomenclature of the proceeding and it is so taken at the stage of final hearing.” 10. Admittedly, learned Single Judge held that he has exercised the jurisdiction under Article 227 of the Constitution of India and having held so proceeded with the matter and decided the same finally which is the subjectmatter of challenge in this writ appeal. Since the order impugned in this intra-Court appeal has been passed by the learned Single Judge in a wit petition, which was filed challenging the order passed in a civil proceeding, the question of maintainability of such an intra-Court appeal has already been set at rest by the apex court in Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1 , and the apex Court, relying upon the various judgments, held that Article 226 of the Constitution of India confers a power on a High Court to issue writs, orders, or directions mentioned therein for enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. The High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act concerned. The order passed by the Civil Court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution. Once it is exclusively assailable under Article 227 of the Constitution of India, no intra-Court appeal is maintainable. The order passed by the Civil Court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution. Once it is exclusively assailable under Article 227 of the Constitution of India, no intra-Court appeal is maintainable. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a letters patent appeal or an intra-Court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a civil court would not lie before the Division Bench. No writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. 11. Where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order, the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-Court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the learned Single Judge and not what provision he mentions while exercising such powers. A statement by a learned Single Judge that he has exercised power under Article 227, cannot take away the right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. A statement by a learned Single Judge that he has exercised power under Article 227, cannot take away the right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra Court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the learned Single Judge. 12. Consequently, maintainability of the Letters Patent Appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, and the type of directions issued, regard being had to the jurisdictional perspectives in the constitutional context. Whether a Letters Patent Appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. It is clarified that in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is, the High Court, even if required to call for the records, the District Judge need not be a party. But how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge and as such, there cannot be a straitjacket formula for the same. But the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by the Supreme Court. The apex Court in Jogendrasinhji Vijaysinghji (supra) summarised the guidelines in paragraph-45, which reads as follows: “45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows: 45.1. Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. 45.2. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. 45.2. The order passed by the civil court is only amenable to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 , no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. 45.3. The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. 45.4. The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.” 13. This Court had got an occasion to deal with the similar question in Saswati Patras v. Saraswati Biswal, 2016 (II) OLR 3 , in which the election to a Member of Zilla Parishad, Puri was under challenge. The question was as to whether under Section 32 of the Zilla Parishad Act, the District Judge has got jurisdiction to try the election petition. While considering the same, this Court held that in an intra- Court appeal, order passed by the Civil Judge is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India. Once it is exclusively assailable under Article 227 of the constitution of India, no intra-Court appeal is maintainable. As such, jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. A letters patent appeal or an intra-Court appeal in respect of an order passed by the learned Single Judge dealing with the order arising out of proceeding from the civil court would not lie before the Division Bench. No writ can be issued against the order passed by the civil court, and therefore, no letters patent appeal will be maintainable. 14. In Rabindranath @ Rabindranath Jena v. Bijaya Kumar Bhuyan & ors. No writ can be issued against the order passed by the civil court, and therefore, no letters patent appeal will be maintainable. 14. In Rabindranath @ Rabindranath Jena v. Bijaya Kumar Bhuyan & ors. 2016 (II) ILR –CUT-28, this Court has already taken into consideration the maintainability of the writ appeal, while considering the provisions contained under Section 31 of the Odisha Grama Panchayat Act, 1964, and this Court has taken similar view as has been held by the apex Court in Jogendrasinhji Vijaysinghji (supra) which has also taken note of judgment of the apex Court in Radhey Shyam v. Chhabi Nath*, (2015) 5 SCC 423 . This Court has also taken similar view in Smt. Swarnaprava Pattnaik @ Das v. Dibakara Satpathy (Dead) through L.Rs. Lilly Satpathy @ Panda and others (Writ Appeal No.346 of 2012) dismissed on 08.12.2016 and Ananda Mohapatra v. Bijay Mohapatra, 2017 (I) ILR CUT 24, holding that since the order was passed by the learned Single Judge in exercise of power under Article 227 of Constitution of India, the writ appeal is not maintainable. 15. So far as applicability of the judgment of Surya Dev Rai (supra) is concerned, the same has also been taken note of in the judgment of the apex Court in Jogendrasinhji Vijaysinghji (supra) and after considering the same, the apex Court recorded the finding, as mentioned above. If the learned Single Judge has committed any error in deciding the writ petition finally, the same can be rectified only by the competent higher forum and not by means of this intra-Court appeal, which is not maintainable. 16. In the case of Darasingh Kumbhar (supra), on which reliance was placed by learned counsel for the appellants, the writ petition, from which the said writ appeal had arisen, was filed challenging the order passed by the learned Additional District Judge, Sonepur reversing the finding and order passed by the learned Civil Judge (Jr. Division), Sonepur in an election petition filed under Section 30 of the Orissa Grama Panchayats Act, 1964. The Division Bench of this Court, while deciding the said writ appeal, categorically observed in paragraph-4 of the judgment as follows:- “4. Division), Sonepur in an election petition filed under Section 30 of the Orissa Grama Panchayats Act, 1964. The Division Bench of this Court, while deciding the said writ appeal, categorically observed in paragraph-4 of the judgment as follows:- “4. There is no dispute with regard to proposition laid down by the Apex Court in three decisions cited by the learned counsel for the respondents that question with regard to territorial and/or pecuniary jurisdiction has to be raised at the first instance. There is no dispute that such question was never raised before the Hon’ble Single Judge and, therefore, the writ application was disposed of by the Hon’ble Single Judge. However, the amended rules of this Court clearly provide that writ applications relating to the Orissa Grama Panchayats Act, 1964 shall be heard by a Division Bench. Though factually the decisions cited by the learned counsel for the appellant have no application to the present case, the observation made by the Apex Court in both the cases have full application. Undisputedly so far as this Court is concerned, the Chief Justice has assigned matters to different single and Division Benches in terms of the amended rules. It was the duty of the advocates appearing for the parties before the Hon’ble Single Judge to bring the same to the notice of the Hon’ble Single Judge. Though it is a fact that the Hon’ble Single Judge was kept in dark about such rules, never the less as per the rules, the Hon’ble Single Judge has no jurisdiction to hear the writ application. We are therefore of the view that the order passed by the Hon’ble Single Judge is without jurisdiction and, therefore, is liable to be set aside.” The factual matrix of the case of Darasingh Kumbhar (supra) is different from that of the present one. Therefore, the ratio decided in the said case is not applicable to the present context. 17. In view of aforesaid facts and circumstances, we are of the considered opinion that in view of law laid down by the apex Court in Jogendrasinhji Vijaysinghji (supra), this writ appeal is not maintainable and the same is hereby dismissed. There shall be no order as to costs. Appeal dismissed.