Patna High Court - Orders
Rama Nand Singh vs Mahanth Lakshaman Das on 23 September, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14398 of 2011
Rama Nand Singh
Versus
Mahanth Lakshaman Das
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03. 23.09.2011. So far this application under Article 227 of the Constitution of India is concerned, it may be mentioned here that in one miscellaneous case, two objections under Order 21 Rule 97 C.P.C. was disposed of by the Court below. Therefore, against the same order, two title appeals were filed before the lower appellate Court, i.e. title appeal No.81 of 2011 and title appeal No.82 of 2011. This writ application relates to title appeal No.82 of 2011. So far the appellant in title appeal No.81 of 2011 is concerned, the appellant had filed C.W.J.C. No.14365 of 2011 which was disposed of on 20.09.2011. The same relief and prayer was made in the said writ application. Therefore, the said order passed in the said writ application shall govern this writ application also. However, the learned counsel with regard to this portion of the order submitted that he is not challenging the same but according to him, if the execution case, i.e., 14 of 1964 is allowed to continue, it will be abuse of the process of Court. The learned counsel further submitted that earlier the petitioner had filed C.W.J.C. No.11501 of 2007 before this Court and this Court by terms of order dated 13.09.2007 directed to dispose of the objection after hearing the petitioner and, thereafter the order under Rule 103 was passed by the executing Court -2- against which the petitioner have filed title appeal N.82 of 2011.
In view of the above facts and circumstances of the case, it is clear that the point which is being now raised in this writ application is sub-judiced before the lower appellate Court in title appeal itself. So far abuse of process of Court is concerned, it may be mentioned here that the Hon'ble Supreme Court in Shalini Shyam Shetty Vs. Rajendra Shankar Patil 2010 (8) Supreme Court cases 329 has held that a proceeding under Article 227 can never be governed under the original side. In certain cases where there is infringement of Fundamental Right, the relief under Article 226 of the Constitution can be claimed as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227 of the Constitution of India, such exercise is entirely discretionary and no person can claim it as a matter of right. Therefore, the submission of the learned counsel that the continuance of the execution case will amount to abuse of process of law or Court is concerned in supervisory jurisdiction that cannot be examined because the same matter is pending before the lower appellate Court.
In view of the above facts, I find no reason to interfere with the impugned order and, therefore, this writ application is dismissed.
Sanjeev/- (Mungeshwar Sahoo,J.)