Writ Jurisdiction Cannot Be Invoked For Execution Of Decree Passed By Civil Court: Kerala High Court

The Kerala High Court enunciated that the public law remedy under Article 226 of the Constitution cannot be invoked for an execution of decree passed by a competent civil court.

The Court was deciding a writ petition filed by a 60-year-old woman against the order issued by the Tahsildar (Land Reforms) and seeking consequential direction to the authorities to fix survey marks on the boundaries of a plot.

A Single Bench of Justice Viju Abraham observed, “It is settled law that the public law remedy under Article 226 of the Constitution of India cannot be invoked for execution of a decree passed by a competent civil court inasmuch as an effective mechanism is provided under Order XXI of the Code of Civil Procedure, 1908. Admittedly, the petitioner has not invoked the said remedy.”

Advocate Jeswin P. Varghese represented the petitioner while Advocate Jayasanker B represented the respondents.

In this case, the petitioner’s late husband had obtained a land by virtue of a Will executed by his mother which was registered as a document. After the husband’s death, an application was submitted by the wife and her children and the Tahsildar mutated the property in their name. Pursuant to the same, basic land tax in respect of the said property was accepted from them but the husband’s brothers attempted to trespass into the same.

The family approached the Sub Court against the said brothers seeking a decree for fixation of boundaries and after survey, the land was distributed equally among the parties. The Additional Sub Court disposed of the suit based on such compromise and subsequently, the wife approached the Tahsildar to fix survey marks (survey stones) on the boundaries. She contended that the authorities were statutorily obliged to do physical demarcation of the boundaries and a judgment was passed based on the compromise. But the application was rejected by Tahsildar (Land Reforms) asking to approach the execution court.

The High Court in the above regard said, “This Court in Corporation of Kochi v. Thomas John Kithu and others, 2020 (3) KHC 515 has held that public law remedy under Article 226 of the Constitution of India cannot be invoked in a case where there is a mechanism provided for execution of a decree. … find considerable force in the contention of the learned counsel appearing for the 7th respondent that the attempt of the petitioner is to execute the decree in O.S.No.524 of 2008 on the file of the Sub Court, North Paravur in a roundabout manner without moving an execution petition in a competent civil court.”

The Court further noted that when an effective alternative remedy is available to the petitioner to approach the competent civil court under Order XXI of the Civil Procedure Code (CPC) for executing the decree, he/she cannot approach the High Court seeking a writ of mandamus to execute a decree passed by the civil court.

“The contention raised by the 7th respondent that if such an execution petition is filed before a competent civil court, the parties can raise their defence/objections regarding the manner of the measurement conducted by the surveyor appointed by the court and also about any disparity in the area and other relevant matters and get an adjudication on the same so as to give a quietus to the matter in issue, is only to be accepted”, it also observed.

The Court, therefore, concluded that the petitioner is not entitled to any of the reliefs sought for in the writ petition.

Accordingly, the High Court dismissed the writ petition making it clear that the dismissal of the same will not affect the right of the petitioner, if any, available under law, to file a petition before the competent court for execution of the decree.

Cause Title- Teresa Mary George v. State of Kerala & Ors. (Neutral Citation: 2024:KER:10939)

Appearance:

Petitioner: Advocate Jeswin P. Varghese

Respondents: Advocate Jayasanker B and GP Ajith Viswanathan

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