ORAL JUDGMENT

Date : 10-12-2024 The present writ petition has been filed seeking the following relief:-

“for setting aside the Order dated 03.10.2015 passed in Title Suit No. 94/2009 pending in the learned Court of Sub Judge, Biraul, Darbhanga by which he has refused to recall the Order dated 05.12.201”

2. The learned counsel for the parties have pointed out, at the outset, that earlier writ petitions were being filed against the interlocutory orders (such orders which have not finally decided the suits or proceedings in favour of the parties and the suits or such proceedings have not stood disposed off), in view of the law laid down by the learned Division Bench of this Court in a judgment dated 13.05.2010, passed in C.R. no. 1067 of 2009 (Durga Devi v. Vijay Kumar Poddar & Ors.), however, subsequently, the Hon’ble Apex Court, by a judgment rendered in the case of Radhey Shyam and Another v. Chhabi Nath and Others, reported in (2015) 5 SCC 423, has held that judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution of India and the jurisdiction under Article 227 of the Constitution of India is distinct from the jurisdiction under Article 226 of the Constitution of India. It would be relevant to reproduce paragraphs no. 18 and 25 to 30 of the said judgment rendered in the case of Radhey Shyam and Another (supra) hereinbelow :-

“18. While the above judgments dealt with the question whether judicial order could violate a fundamental right, it was clearly laid down that challenge to judicial orders could lie by way of appeal or revision or under Article

227 and not by way of a writ under Articles 226 and 32.

25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression “inferior court” is not referable to the judicial courts, as rightly observed in the referring order [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted above.

26. The Bench in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Articles 226 and 227 was obliterated was not correct as rightly observed [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] by the referring Bench in para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said ju