Holding

Article 226 cannot be invoked to override the specific remedies for execution of a decree under the Civil Procedure Code; the writ petition must be dismissed.

Summary

The landlords (appellants) obtained an eviction decree against their tenant, Respondent No.7, but the tenant's relatives (Respondents 1‑5) claimed they were also tenants in their own right and filed a writ petition under Article 226 of the Constitution. The High Court entertained the writ, holding that the decree did not bind the relatives because it was passed only against Respondent No.7. On appeal, the Supreme Court held that Article 226 is a supervisory remedy and cannot be used to bypass the detailed procedures for execution of a decree provided in the Civil Procedure Code. Since an alternative civil remedy existed under Order XXI of the CPC, the High Court should have refused to entertain the writ and not decided the merits of the possession dispute. Consequently, the Supreme Court set aside the High Court’s order, dismissed the writ petition, and allowed the appeal with costs.

Issues considered

Whether the High Court was justified in entertaining a writ petition under Article 226 when an alternative remedy under the Civil Procedure Code was available.
Whether the writ jurisdiction can be exercised to determine the merits of a dispute concerning possession and executability of a decree.
Scope and nature of the supervisory jurisdiction conferred by Article 226 of the Constitution.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rules 97-106
Constitution of Indias. Article 226

Subjects

Article 226writ jurisdictionCivil Procedure Codeexecution of decreealternative remedysupervisory jurisdictionevictionjoint Hindu family

Judgment

GHAN SHYAM DAS GUPTA AND ANR. A
v.
.ANANT KUMAR SINHA AND ORS.

SEPTEMBER 17, 1991

(LALIT MOHAN SHARMA AND J. S. VERMA, JJ.] B

Constitution of India, 1950: Article 226-Scope of -Jurisdictioll
-£xercise of -whether justified when alternative remedy available.

Civil Procedure Code, 1908: Order XX/, Rules 97-106- Executioll C
of decree--Whether third party, claimant objector, entitled to remedy.
The appellants, owners of the premises in question obtained a decree
of eviction against the tenant, Respondent No. 7. While the' decree was
under challenge before the High Court, Respondent Nos. 1 to 5
approached the High Court under Art.' 226 of the Constitution, claiming D
that, being members of Joint Hindu Family, alongwith the father of
- -t Respondent No. 7, they were tenants in their own right under the
'
appellants
.
and
··"'
were not bound by the decree, .si~·they were not parties
in the eviction case. The appellants denied the claim of independent right
of the respondent Nos. 1 to 5 and alleged that they had been subsequently
inducted in the premises as sub-tenants by respondent No. 7. E
The High Court held that since the claim of the Respondent Nos. 1 to
5 was not examined and decided in the suit and the decree was passed
-f against Respondent No. 7 only, they could not be evicted from the
;>remises.
F
Allowing the appeal preferred by the landlord-appellants, this
Court,
HELD: 1.1 The remedy provided under Art. 226 is not intended to
supersede the modes of obtaining relief before a civil court or to deny
defences legitimately open in such actions. The jurisdiction to issue a writ
of ceniorari is supervisory in nature and is not meant for correcting errors G
like appellate Court. (122 E-F]
State of Alldhra Pradesh v. Chitra Venkata Rao, (1976) 1SCR521;
T71a11si1Jgh Nathmal & Ors. v. A. Mazid, [1964) 6 SCR 654 and M. Nailla
Mohammed v. K.A. Natarajan & Ors., [1976) 1 SCR 102, relied on. H

119
120 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A 1.2 1be Civil Procedure Code contains elaborate and exhaustive
provisions for dealing with executability of a decree in all its aspects. The
numerous rules of order XXI of Civil Procedure Code take care of
different situations, providing effective remedies not only to
judgment-debtors and decree-holders but also to claimant objectors as the
case may be. In an exceptional· case, where- pr.ovisions are rendered·
B incapable of giving relief to an aggrieved party i~:·adeq'uate measure and
appropriate tiine, the answer is a regular suit in the civil court. The
remedy under the Code is of superior judicial quality than what is f<.
generally available under other statutes, and the judge, being entrusted
exclusively with administration of justice, is expected to do better. It will
C be, therefore, difficult to find a case where interference in writ jurisdiction
for granting relief to a judgment-debtor or a claimant objector can be
justified. Rules 97 to 106 of Order XXI envisage questions to be
determined on the basis of evidence to be led by the parties and after the
1976 Amendment, the decision has been made appealable like a decree.
I) · [ 123C-El

1.3 In the instant case, it was necessary to adjudicate upon the
dispute between the parties and record a finding on the character of
possession of Respondent Nos. 1 to 7 before proceeding to consider
E whether the decree is executable or not. against them and having not done
so, the High Court has seriously erred in law in allowing the writ petition
filed by them. The decision on the disputed bsue was dependent on the
consideration of the evidenc~ to be led by the parties, and while exercising
the writ jurisdiction,. the High Court was not expected to go into that ·,__
F question and ought not to have embarked upon a decision on merits, and
should have refused to exercise the special jurisdiction on the ground of
alternative remedy before the civil court. (122 B-D] ·

, CIVIL.APPELLATE JURISDICTION: Civil Appeal No. 3656 of
1991. ·'
G
. From the Judgment and Order dated 5.12.1988 of the Allahabad
High Court in Civil Misc. Writ Petition No. 1695 9f 1986.

O.P. Rana and Gi~ish Chandra fqr the Appellants.

H B.D. Agarwal and R.D. Upadhyay for the Respondents.
G. S. D. GUPTA v. ANANT KUMAR (SHARMAJ.) 121

The Jud~ent of the Court was delivered by A
' ; -" :L ... , ·[. '•
SHARMA, J. Special leave is granted. _ JJ .· ·r:: .j
-
....
.
; : • t ~ t~ • ;

2. This appeal is directed against the judgment of Allahabad High
Court, allowing the writ petition of the respondents Nos. 1 to 5 under
Article 221) of the Constitution, and directing that they shall not be evicted B
from the premises in dispute in· pursuance of an eviction decree passed by
the small causes court, Allahabad. The main question which arises for
decision is whether in the facts and circumstances of the case the High
Court was justified in entertaining the writ p~tition under Article 226 of the
Constitution, and proceeding to issue the impugned direction. ,.

3. The appellants are the owners of the preniises in ,question which C
according to their case was in possession of Dr. K.C. Sinha as tenant. After
his death his son Prabhas Kumar Sinha, respondent No. 7, continued in
possession. The writ petitioners - respondents are the 1'Sons of the
brothers of Dr. K.C. ,Sinha, and according to their case they being members
of the joint Hindu Family alon~ with Dr. K.C., Sinha are tenants in their D
own right under the appellants. The case of the appellants is that they
t were subsequently inducted in the premises as sub-tenaqts by Prabhas
Kumar Sinha and did not have any independent right.

. 4. The eviction suit in the small causes court was file(f, by the appel-
lants against Prabhas Kumar Sinha for his eviction, without impleading the
writ petitioners, and the decree passed therein is under challenge by the E
judgment-debtor Prabhas Kumar Sinha in revision before the High Court.
In this background the respondents No. 1 to 5 approached the High Court
under Article 221) of the Constitution, claiming that they, not being parties
in the eviction case, are not bound by the decree.

5. The appellants in support of their· denial of the claim of inde- · F
pendent right ·as tenants of the writ petitioners, pleaded supporting facts
and circumstances in detail, inter alia alleging that the writ petitioners have
deliberately concealed the fact that they were parties in an immediately
preceding case under the provisions of the Rent Act for release of the
premises in favour of the landlord-appellants and that the release order
was ultimately made by the delegated authority overruling their objection. G

6. The High Court' has held that sinctnhe claim of the writ
petitioners was not examined a~d decided in the suit and the decree was
passed against Prabhas Kumar Sinha only, they cannot be evicted froJ!l the
premises unless a decree is expressly passed against them. It has been
H
'
122 SUPREME COURT REPORTS [1991) SUPP. 1 S. C. R

A observed that the appellants must proceed to file a suit against the writ
petitioners and obtain a decree against them if they intend to eject them.

7. It has been contended, and in our view correctly, that if the claim
of the writ petitioners of being in possession of the premises as tenants in
their own right is rejected and they are held to have been inducted by
B Prabhas Kumar Sinha or his father Dr. K.C. Sinha, they are liable to be
evicted in execution of the present decree. It was, therefore, necessary to
adjudicate upon the dispute between the parties and record· a finding on
the character of possession of the writ petitioners, before proceeding to
consider whether the decree is executable or not against them, and having
not done so, the High Court has seriously erred in law in allowing the writ
C petition by the impugned judgment. · The decision on the disputed issue •
was dependent on 'the consideration of the evidence to be led by the par- '
ties, and whUle exercising the writ. jurisdiction the High Court was not
expected to go into that question. In the circumstances, the Courrought to
have refused .to dispose of the .writ petition on merits, leaving the writ
petitioners to .avail of the remedy before the civil court. The error in the
D judgment as pointed out earlier was the consequence of the initial mistake
in entertaining the petition. ·

·8. Tht~ principle as to when the High Court should exercise its
special jurisdiction under Article 226 and wnen to refuse to do so on· the
ground of availability of an alternative remedy has been settled by a long
E line of cases. Tfae remedy provided under Article 226 is not intended to
supersede the modes of obtaining relief before .a civil court or to deny
defences legitimately open in such actions. As was observed in State of
Andhra Pradesh v. Chitra Venkata Rao (1976] 1 SCR 521 the jurisdiction to
issue a writ of certiorari is supervisory in· nature and is not meant for cor-
recting errors like an appellate court. In Thansingh Nathmal and Ors. v.A.
F Mazid : {1964] 6 SCR 654 a case dealing with liability to pay sales tax, the
appellants without following the statutory remedy under the Sales Tax Act,
moved the High Court under Article 226 on the ground that the Act was
ultra vires. The challenge was rejected.. Another contention, namely, that
the finding of the Commissioner that the goods were actually within the
State at the time of the contract was based on no evidence and was purely
G speculative, was also raised. This ground also failed before the High Court
and the writ petition was dismissed. Approving the decision, this Court
observed that if the appellants had persued the statutory remedy under the
Act and the question had been referred to the High· Court, the Court
·could have appropriately advised the Commissioner, but not having done
H so, the High Court could not be asked to assume the role of an appellate
G. S. D. GUPTA v. ANANT KUMAR [SHARMAJ.] 123

court over the decision of the Commissioner either on a question of fact or A
even of law. Again when a learned Single Judge of the High Court and on
appeal a Division Bench proceeded to examine the correctness of an order
in relation to grant of a permit to ply a vehicle under the Motor Vehicles
Act, it was observed by this Court in M. Naina Mohammed v. K.A.
Natarajan & Ors., [1976] 1 SCR 102, that the power under Article 226 is
supervisory in nature and the Judges at both the tiers had unwittingly B
slipped into the subtle but, fata~ error of exercising a kind of appellate
review. So far the question of executability of a decree is concerned, the
Civil Procedure Code contains elaborate and exhaustive provisions for
dealing with it in all its aspects. The numerous rules of order XXI of the
Code take care of different situations, providing effective remedies not
only to judgment-debtors and decree-holders but also to claimant objec- C
tors as the case may be. In an exceptional case, where provisions are
rendered incapable of giving relief to an aggrieved party in adequate
measure and appropriate time, the answer is a regular suit in the civil
court. The remedy under the Civil Procedure Code is of superior judicial
quality than what is generally available under.other statutes, and the Judge
-+ being entrusted exclusively with administration of justice, is expected to do
better. It will be, therefore, difficult to find a case where interference in
D
writ jurisdiction for granting relief to a judgment-debtor or a claimant
objector can be justified. The rules 97 to 106 of order XXI envisage ques-
tions as in the present appeal to be determined on the basis of evidence to
be led by the parties and after the 1976 Amendment, the decision has been
made appealable like a decree. The High Court, in the present case, there- E
fore, ought not to have embarked upon a decision of the writ petition on
-/
merits, and should have refused to exercise its special jurisdiction on the
ground of alternative remedy before the civil court.

9. We, accordingly, set aside the impugned judgment and dismiss
the writ petition of the respondents without examination of the merits of F
the rival cases of the. parties. The. appeal is allowed with costs, assessed at
Rs.2,000. .

N.P.V. Appeal allowed;

\