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4. Per contra, Mr. M.G. Bhangde, learned senior counsel, made the following submissions -

(a) Writ petition that was filed by the respondents was admittedly under Articles 226 and 227 of the Constitution of India with a prayer therein to quash and set aside the judgment of District Judge-3 in Regular Civil Appeal No. 140 of 2008. In the case of Surya Dev Rai v.

Ram Chander Rai - (2003) 6 SCC 675 the ratio decidendi laid down by the Supreme Court is that a writ of certiorari will lie even to demolish the order of civil court, or in the instant case that of District Judge, and that is the present legal position laid down by the Supreme Court and therefore the judgment of the learned Single Judge quashing the judgment rendered by the District Judge, though in a dispute between landlord and tenant, it will have to be held that the learned Single Judge issued a writ of certiorari quashing the said appellate judgment Though it is true that the said issue has been referred by a Bench of Supreme Court to a larger bench in the case of Radhey Shyam v. Chhabi Nath reported in (2009) 5 SCC 616 (Para 32 & 33), fact remains that there is no decision yet taken by the larger Bench of the Supreme Court and therefore the said judgment in Surya Dev Rai, supra, has a binding effect as on the date. The judgment in the case of Surya Dev Rai has been approved and followed in the subsequent judgment in the case of M.M.T.C. Ltd. v. Commissioner of Commercial Tax - (2009) 1 SCC 8 with reference to the earlier decision of Supreme Court on the issue regarding maintainability of the letters patent appeal. The three Judge Bench of Supreme Court in the case of M.M.T.C. Ltd., supra, approved Surya Dev Rai's judgment and will have to be applied for considering the question in the present appeal.

9. As regards the controversy raised before us about the ratio decidendi in the case of Surya Dev Rai and about the obiter dicta, the apex court held that the question referred to the larger Bench related only as to whether writ of certiorari could be issued to quash the orders of civil courts. We quote below para 54 therefrom -

" (54) In a rather recent decision of the Supreme Court in case of Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675, a two judge Bench of this Court discussed the principles of interference by High Court under Article 227. Of course in Surya Dev Rai (supra) this Court held that a writ of Certiorari is maintainable against the order of a civil court, subordinate to the High Court (para 19, page 668 of the report). The correctness of that ratio was doubted by another Division Bench of this Court in Radhey Shyam and anr. v. Chhabi Nath [(2009) 5 SCC 616] and a request to the Hon'ble Chief Justice for a reference to a larger Bench is pending.
(24) The learned Judges in Surya Dev Rai, however, opined that the Judges never held in Mirajkar that the law relating to certiorari in England was accepted by the Supreme Court. But this observation in Surya Dev Rai appears to have been made without properly considering the concurring and a separate opinion given by Sarkar, J. in Mirajkar wherein His Lordship clearly held : (SCC p. 23, para 82) "82...... As certiorari is a technical word of English law and had its origin in that law, for determining its scope and contents we have necessarily to resort to English law."

(26) The Two-Judge Bench in Surya Dev Rai did not, as obviously it could not overrule the ratio in Mirajkar, a Constitution Bench decision of a nine-Judge Bench.

(32) The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Devi Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari.