IMPORTANT POINTS
There is distinction between judicial acts of Tribunals and judicial orders of civil courts. Judicial orders of Courts stand on different footing.
Judicial order of a competent court could not violate fundamental right.
Order of civil court is amenable to writ jurisdiction under Article 226 of the Constitution.
Challenge to Judicial orders could lie by way of appeal or revision or under Article 227 but not by way of a writ under Article 226 and 32.
Power of High Court under Article 227 remains unaffected by amendment in section 115 CPC.

JUDGMENT

ADARSH KUMAR GOEL, J.

1. This matter has been placed before the Bench of three Judges in pursuance of an order dated April 15, 2009 passed by the bench of two Hon’ble Judges to consider the correctness of the law laid down by this Court in Surya Dev Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675 that an order of civil court was amenable to writ jurisdiction under Article 226 of the Constitution. The reference order, inter alia, reads:-

30. ………Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.

31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.

32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev 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. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra [2002 (4) SCC 388].

33. In view of our difference of opinion with the views expressed in Surya Dev Rai, matter may be placed before His Lordship the Hon’ble the Chief Justice of India for constituting a larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai on the question discussed above.”

2. Since this Bench has to decide the referred question, it is not necessary to mention the facts of the case in detail. Suffice it to say that assailing an interim order of civil court in a pending suit, the defendant-respondent filed a writ petition before the Allahabad High Court and the High Court having vacated the said interim order granted in favour of the plaintiff-appellant, the appellant moved this Court by way of a special leave petition, inter alia, contending that the writ petition under Article 226 was not maintainable against the order of the civil court and, thus, the impugned order could not be passed by the High Court. On behalf of the respondent, reliance was placed on the decision of this Court in Surya Dev Rai laying down that a writ petition under Article 226 was maintainable against the order of the civil court and thus it was submitted that the High Court was justified in passing the impugned order.

3. As already mentioned, the Bench of two Hon’ble Judges who heard the matter was not persuaded to follow the law laid down in Surya Dev Rai. It was observed that the judgment in Surya Dev Rai did not correctly appreciate the ratio in the earlier Nine Judge judgment of this Court in Naresh Shridhar Mirajkar and others vs. State of Maharashtra, AIR 1967 SC 1 = 1966 (3) SCR 744 wherein this Court came to the conclusion that “Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction (para 63)”. With reference to the observations in Surya Dev Rai for not following the conclusion in Mirajkar, the referring Bench inter alia observed:

“25. In our view the appreciation of the ratio in Mirajkar by the learned Judges, in Surya Dev Rai, with great respect, was possibly a little erroneous and with that we cannot agree.

26. The two-Judge Bench in Surya Dev Rai did not,