Daljeet Kaur vs Indira Deshlahra

Heard Mr. H.B. Agrawal, learned senior counsel, assisted by Ms. Swati Agrawal, learned counsel for the appellant. Also heard Mr. Ashish Surana, learned counsel, appearing for the respondent.

This writ appeal is presented against an order dated 22.09.2022 passed by the learned Single Judge in WP(227) No. 376 of 2020.

In the writ petition challenge was made to an order dated 28.02.2020 passed by the Third Civil Judge, Class-II, Durg in Execution Case No.01/12, whereby, I.A. Nos. 02 to 10 were disposed of.

It is against that order dated 28.02.2020, the application under Article 227 of the Constitution of India was filed before this Court and which was dismissed by the learned Single Judge as noticed above.

Mr. Ashish Surana submits that this appeal is not maintainable in view of the provisions contained in Section 2 (1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, for short, the Act of 2006, which specifically provides that no appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

Mr. Agrawal submits that in view of Rule 158(10)(b) of the High Court of Chhattisgarh Rules, 2007, for short, ‘the Rules of 2007’, this appeal is maintainable.

What is important is to note that the Hon’ble Supreme Court in the case of Radhey Shyam and Another v. Chhabi Nath and Others, reported in (2015) 5 SCC 423, had held that judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution of India. It was laid down that challenge to judicial orders would lie by way of appeal or revision or under Article 227 and not by way of a writ under Article 226 and 32.

There is no dispute that the order dated 28.02.2020 is a judicial order and therefore, there is no manner of doubt that the application filed by the petitioner under Article 227 was decided as an application under Article 227 of the Constitution of India.

Section 2 (1) of the Act of 2006 reads as follows:

“2. Appeal to the Division Bench of the High Court from a Judgment or order of one judge of the High Court made in exercise of original jurisdiction. - (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original Jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court:

Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.”

A perusal of the above would go to show that no appeal shall lie before Division Bench against an order passed by a learned Single Judge in exercise of supervisory jurisdiction under Article 227 of the Constitution of India to the Division Bench comprising of two judges of the High Court.

Rule 158 (10)(b) of the Rules of 2007 reads as follows:

“158. Case Flow Management Rules in the High Court:-

Division of Cases into different tracks:

xxx xxx xxx

(10) Writ appeals.- An appeal to a Division Bench from judgment of a Single Judge may lie in the following cases:

xxx xxx xxx

(b) appeals from final judgment of a Single Judge in original jurisdiction:

xxx xxx xxx”

As noted earlier, the learned Single Judge did not exercise original jurisdiction while deciding the validity of the judicial order dated 28.02.2020 The same was done under the supervisory jurisdiction under Article 227 of the Constitution of India and therefore, submission of Mr. Agrawal is misconceived.

In that view of the matter, this appeal is not maintainable and resultantly, the same is dismissed.