JUDGMENT

V.G. Oak, C.J. - The following two questions of law have been referred to this Full Bench: -

1. Whether an application under Article 226 of the Constitution is a proceeding in a court of civil jurisdiction and as such the provision of Or. 1, R. I of the Code of Civil Procedure would be applicable to such a proceeding?

2. If the answer to the first question is in the affirmative, then whether persons more than one can join together in a petition under Article 226 of the Constitution in the circumstances in which persons more than one can join together as plaintiffs in a suit in accordance with the provisions of Or. I, R. I of the Code of Civil Procedure?

The dispute between the parties relates to a number of plots, which were owned by Smt. Laksha Kumari Khaitan, opposite party No. I in the writ petition, which has given rise to the present reference. On 5-6-1961 these plots were sold in auction in order to realise certain dues that were out-standing against opposite-party No. 1. The auction sale was confirmed on 8-5-1962. On 26-3-1963 opposite party No. I moved before the Commissioner, Lucknow an application for setting aside the auction sale dated 5-6-1961. On 21-4-1964 the Commissioner set aside the auction sale. On 5.10-1964 Mall Singh and others moved before the Commissioner an application for recalling his order dated 21-4-1964. The application was rejected by the Commissioner on 18-1-1966. Mall Singh and 20 others have filed the writ petition for getting the two orders dated 214-1964 and 18-1-1966 quashed.

The writ petition is opposed by opposite party No. 1. She raised a preliminary objection that a joint writ petition by 21 persons is not maintainable. When the writ petition came up for hearing before one of us, he found some difficulty in following a decision by a Division Bench of this Court on this question. He, therefore, referred the two questions of law quoted above to a Full Bench.

On question No. 1 Mr. B.K. Dhaon appearing for the petitioners relied upon Sec. I41, C.P.C. Section 141, C.P.C. states:-

"The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."

In order to decide whether Section 141, C.P.C. is attracted, it becomes necessary to ascertain whether under Article 226 of the Constitution this Court exercise civil jurisdiction. This question is closely connected with the question whether a petition under Article 226 is a civil proceeding.

In Khurjawala Buckles Manufacturing Company v. Commissioner, Sales Tax, U.P., A.I.R. 1965 Alld. 517 it was held by Desai, C.J. that the provisions of the Code of Civil Procedure do not govern a proceeding under Article 226 of the Constitution. Hence a petition for the quashing of two assessment orders pertaining to two assessment years on one petition or one petition for the quashing of two assessment orders under different taxing statutes cannot be entertained.

In Collector of Monghyr v. Pratap Singh, A.I.R. 1957 Pat. 103 it was held by a Full Bench of Patna High Court that a proceeding before the High Court under Article 226 of the Constitution is not a civil proceeding within the meaning of Article 133 of the Constitution.

In A. Adinarayana v. State of Andhra Pradesh, A.I.R. 1958 AP 16 it was held that an application under Article 226 of the Constitution is a proceeding in a Court of civil jurisdiction. Section 141, C.P.C. is, therefore, directly attracted, and the provisions of Ors. 1 and 2 of the Code can be invoked so far as they can be made applicable to the proceeding in a writ application under Article 226. Ordinarily, two or more persons cannot join in a single petition to enforce separate claims. But where the right to relief arises from the same act or transaction, and there is a common question of law or fact, or where, though the right to relief claimed does not arise from the same act or transaction, the petitioners are jointly interested in th