Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Teresa Mary George v. State of Kerala, has held that writ jurisdiction under Article 226 of the Constitution of India, 1950 (COI) cannot be invoked for the execution of a decree.

What was the Background of Teresa Mary George v. State of Kerala Case?

• In this case, the Petitioner’s late husband has obtained 3.24 acres of land by virtue of a Will executed by his mother.
• 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.
• Thereafter, the petitioner approached the respondents to fix survey marks as agreed in the compromise.
• This was rejected by the respondent and the petitioner filed a petition before the Kerala High Court which was later dismissed by the Court.

What were the Court’s Observations?

• Justice Viju Abraham observed that 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 (CPC) for executing the decree passed by a civil court, then the petitioner cannot approach this Court under Article 226 of the COI to execute the decree passed by the civil court.
• The Court relied on the judgment given in the case of Corporation of Kochi v. Thomas John Kithu and Ors. (2020).
  • In this case, Kerala High Court has held that public law remedy under Article 226 of the COI cannot be invoked in a case where there is a mechanism provided for execution of a decree.

What are the Relevant Legal Provisions Involved in it?

Article 226 of the COI

About:

• Article 226 is enshrined under Part V of the Constitution which puts power in the hand of the High Court to issue the writs.
• Article 226(1) of the COI states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and for other purpose.
• Article 226(2) states that the High Court has the power to issue writs or orders to any person, or government, or authority -
  • Located within its jurisdiction or
  • Outside its local jurisdiction if the circumstances of the cause of action arises either wholly or partly within its territorial jurisdiction.
• Article 226(3) states that when an interim order is passed by a High Court by way of injunction, stay, or by other means against a party then that party may apply to the court for the vacation of such an order and such an application should be disposed of by the court within the period of two weeks.
• Article 226(4) says that the power granted by this article to a high court should not diminish the authority granted to the Supreme Court by Clause (2) of Article 32.
• This Article can be issued against any person or authority, including the government.
• This is merely a constitutional right and not a fundamental right and cannot be suspended even during an emergency.
• Article 226 is of mandatory nature in case of fundamental rights and discretionary nature when it is issued for “any other purpose”.
• It enforces not only fundamental rights, but also other legal rights.
• The following writs are available under this Article:
  • Writ of Habeas Corpus
  • Writ of Mandamus
  • Writ of Certiorari
  • Writ of prohibition
  • Writ of Quo warranto

Case Laws:

• In Bandhua Mukti Morcha v. the Union of India (1984), the Supreme Court held that Article 226 has a much broader scope than Article 32 as Article 226 can be issued to safeguard legal rights as well.
• In Common Cause v. Union of India (2018), the Supreme Court held that the writ under Article 226 can also be issued for the enforcement of public responsibilities by public authorities.

Order XXI of CPC

• Order 21 of the CPC deals with the execution of decrees and orders payment under decree.
• This Order contains 106 rules.
• It provides the procedure for the execution of decrees, such as the attachment of property, sale of property, arrest, and detention of a judgment debtor, appointment of a receiver, etc.