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

The petitioner had approached the High Court invoking its writ jurisdiction under Article 226 of the Constitution for fixation of survey marks on the boundaries of a property allegedly in dispute.

While dismissing the writ petition, Justice Viju Abraham stated thus:

“When an effective alternative remedy is available to the petitioner to approach the competent civil court under Order XXI of the Code of Civil Procedure, 1908 for executing the decree passed by a civil court, I am of the opinion that they cannot approach this Court under Article 226 of the Constitution of India seeking a writ of mandamus to execute the decree passed by the civil court. In view of the above, I am of the opinion that the petitioner is not entitled to any of the reliefs sought for in the writ petition.”

The petitioner and her children had filed an original Suit in Sub Court for obtaining a decree for the fixation of boundaries of a property under a Will. Pending the suit, the survey commission was taken out for the demarcation of the boundary and preparation of the survey plan. The parties entered into a compromise and the suit was decreed.

While effecting mutation on adjoining land, the petitioner approached the respondents to fix survey marks as agreed in the compromise. This was rejected by the respondent and the aggrieved petitioner approached the High Court for fixation of survey marks on the boundaries of the alleged property, if necessary, with assistance from the police.

The Counsel for the petitioner submitted that based on the compromise entered by the parties, the Sub Court had decreed the suit. It was argued that she did not approach the civil court for the execution of the decree for the demarcation of property since the order of the civil court had attained finality.

The respondents objected to this and stated that the writ petition was not maintainable. It was contended that a decree passed by a civil court cannot be executed by the issuance of a writ of mandamus and that the remedy was to approach a competent civil court under Order XXI of the CPC.

The Court stated that public law remedy under Article 226 cannot be invoked for the execution of a decree passed by a competent civil court when there was an alternative effective remedy provided under Order XXI of the CPC to approach a competent civil court.

Relying upon the decision in Corporation of Kochi v. Thomas John Kithu and others (2020), the Court stated that public law remedy under Article 226 cannot be invoked for the execution of a decree.

“The contention raised by the 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.”, stated the Court.

Accordingly, the writ petition was dismissed.

Counsel for Petitioner: Advocate Jeswin P Varghese

Counsel for Respondents: Government Pleader Ajith Viswanathan

Citation: 2024 LiveLaw (Ker) 116

Case title: Teresa Mary George v State of Kerala

Case number: WP(C) NO. 3302 OF 2023

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