Amna Begam And Ors vs Halima Begam And Ors

Ajay Kumar Tripathi, CJ

Heard counsel for the parties.

A preliminary objection has been raised on behalf of the respondents No.1 to 9 that the present appeal under Section 2(1) of the Chhattisgarh High

Court (Appeal to Division Bench) Act, 2006 is not maintainable against the order of the learned Single Judge dated 06/08/2018 passed in Writ Petition

(C) No. 1991/2007.

Submission of the learned Senior counsel representing respondents No.1 to 9 is that from the perusal of the original records of Writ Petition (C) No.

1991/2007 will indicate that this writ was filed under Article 227 of the Constitution of India challenging the order and decision passed by the

Executing Court of First Civil Judge Class-I, Bilaspur.

The argument made on behalf of counsel representing the appellants is that the appeal Court should have looked into the context and the quality of

the adjudication so made by the learned Single Judge on weather it comes within the ambit of an adjudication within Article 226 or 227 of the

Constitution of India. In this regard, he brought the attention of this Court to a decision rendered in the case of Jogendrasinghji Vijaysinghji v. State of

Gujarat and others reported in (2015) 9 SCC 1 especially, Paragraph -30 :

From the aforesaid pronouncements, it is graphically clear that maintainability of a 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, the type of directions issued regard being had to the

jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three- Judge Bench in Radhey Shyam,

(2015) 3 SCC (Civ) 67 that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all

purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under

Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court.

There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they

can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of

the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise

of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the

case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated,

one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to

comment on the same as that would depend upon the rules framed by the High Court.

On having gone through the impugned order passed by the learned Single Judge the adjudication so made on the issue against the decision of the

First Civil Judge Class-1, Bilaspur in the execution case, we have no hesitation in recording that the writ application was an application moved before

the High Court under Article 227 of the Constitution of India, against which no appeal will lie before a Division Bench of the High Court.

The appeal is dismissed, however, dismissal of the appeal will not come in the way of the appellants in pursuing or seeking remedy before an

appropriate jurisdiction in accordance with law.