Case Note & Summary
The petitioners, original defendants in a suit, challenged an order dated 06/05/2018 passed by the Civil Judge, Panaji in Execution Proceedings. The trial court had allowed an application dated 28/08/2016 filed by the respondents (original plaintiffs/decree-holders) seeking appointment of a commissioner to deliver possession of the suit property to them. The petitioners invoked the High Court's supervisory jurisdiction under Article 227 of the Constitution of India. The High Court heard both sides and examined the impugned order. It noted that the trial court had exercised its discretion under Order 21 Rule 35 of the Code of Civil Procedure, 1908, which permits the court to appoint a commissioner to effect delivery of possession. The High Court found no jurisdictional error, perversity, or procedural irregularity in the trial court's order. It held that the supervisory jurisdiction under Article 227 is limited and does not allow the High Court to act as an appellate court or substitute its own discretion. Consequently, the writ petition was dismissed, and the rule was discharged. No order as to costs.
Headnote
A) Civil Procedure - Execution Proceedings - Appointment of Commissioner for Delivery of Possession - Order 21 Rule 35, Code of Civil Procedure, 1908 - The petitioners challenged the trial court's order appointing a commissioner to deliver possession of the suit property to the decree-holders. The High Court held that the trial court had the discretion to appoint a commissioner to effect delivery of possession and that the order did not suffer from any jurisdictional error or perversity warranting interference under Article 227. (Paras 1-6)
B) Constitutional Law - Supervisory Jurisdiction - Scope of Interference under Article 227 - Article 227 of the Constitution of India - The High Court reiterated that its supervisory jurisdiction under Article 227 is limited to correcting errors of jurisdiction or perversity and does not extend to reappreciating evidence or substituting its own view. The impugned order was found to be within the trial court's jurisdiction and not vitiated by any error. (Paras 4-6)
Issue of Consideration
Whether the order dated 06/05/2018 passed by the Civil Judge, Panaji in Execution Proceedings allowing the application dated 28/08/2016 for appointment of a commissioner to deliver possession of the suit property to the decree-holder was liable to be interfered with under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition, discharged the rule, and made no order as to costs.
Law Points
- Execution proceedings
- Order 21 Rule 35 CPC
- appointment of commissioner
- delivery of possession
- Article 227 of Constitution of India
- supervisory jurisdiction
- scope of interference
Case Details
2019 LawText (BOM) (03) 273
WRIT PETITION NO.587 OF 2018
Shri Anthony D'Silva (for petitioners), Shri Abhay Nachinolkar (for respondents)
Shri Jose Martins Fernandes, Mrs. Perpetua Fernandes, Shri Milagres Fernandes, Ms. Brigida Fernandes, Ms. Marlind Fernandes
Shri Luis Caetano Guilherme Wellington Fernandes (also known as Wellington D'Mello), Mrs. Doris D'Mello
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order in execution proceedings.
Remedy Sought
The petitioners sought to quash the order dated 06/05/2018 passed by the Civil Judge, Panaji allowing the application dated 28/08/2016 for appointment of a commissioner to deliver possession of the suit property to the respondents.
Filing Reason
The petitioners were aggrieved by the trial court's order appointing a commissioner to deliver possession of the suit property to the decree-holders.
Previous Decisions
The Civil Judge, Panaji had passed the order dated 06/05/2018 in Execution Proceedings allowing the application dated 28/08/2016.
Issues
Whether the trial court's order appointing a commissioner to deliver possession of the suit property was liable to be interfered with under Article 227 of the Constitution of India.
Submissions/Arguments
The petitioners argued that the trial court's order was erroneous and warranted interference under Article 227.
The respondents supported the trial court's order and submitted that it was within its discretion.
Ratio Decidendi
The trial court had the discretion under Order 21 Rule 35 CPC to appoint a commissioner to deliver possession of the suit property. The impugned order did not suffer from any jurisdictional error or perversity, and the High Court's supervisory jurisdiction under Article 227 is limited to correcting such errors and does not extend to reappreciating evidence or substituting its own discretion.
Judgment Excerpts
The petitioners are invoking the jurisdiction of this Court under Article 227 of the Constitution of India calling in question the order dated 06/05/2018 passed by the Civil Judge, Panaji in the Execution Proceedings whereby it allowed the application dated 28/08/2016.
Heard Shri Anthony D'Silva, learned Advocate for the petitioners and Shri Abhay Nachinolkar, learned Advocate for the respondents.
Procedural History
The respondents (original plaintiffs) obtained a decree for eviction against the petitioners (original defendants). In execution proceedings, the respondents filed an application dated 28/08/2016 seeking appointment of a commissioner to deliver possession of the suit property. The Civil Judge, Panaji allowed that application by order dated 06/05/2018. The petitioners challenged that order by filing the present writ petition under Article 227 of the Constitution of India before the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908: Order 21 Rule 35
- Constitution of India: Article 227
