2025:HHC:37290 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 491 of 2019 Decided on: 06.11.2025 Smt. Madhvi … Petitioner Versus Sh. Kailash Chand and others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ___________________________________________________________________ For the petitioner : M/s Meera Devi and Rahul Sharma, Advocates vice Mr. Deepak Gupta, Advocate. For the respondents : Mr. R.K. Bawa, Senior Advocate with Mr. Ajay Kumar Sharma, Advocate for respondents No. 1 and 2. : None for respondents No. 3 and 4. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has primarily prayed for the following reliefs:- “It is, therefore, respectfully prayed that the petition may kindly be allowed and the orders passed by the learned Rent Controller/Junior Civil Judge, Court No.(3), Shimla in Objection petition No. 34-2018 filed in Execution Petition No. 101 of 2018 may kindly be set aside and the petitioner may be restituted to the same possession, as it exists prior to filing of the objections by her.” 2. The Order under challenge is the one passed by learned 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:37290 Executing Court, in terms whereof, the objections filed by the present petitioner under Order 21, Rule 97 of the Code of Civil Procedure have been dismissed. 2. Learned Senior Counsel appearing for the respondents has taken an objection with regard to the maintainability of the present petition on the ground that as the rejection of the objections is to be treated as a decree in terms of Order 21, Rule 103 of the Code of Civil Procedure, the present petition is not maintainable. In support of his contention, learned Senior Counsel has relied upon the judgments passed by Hon’ble Supreme Court in Virudhunagar Hindu Nadargal Dharma Praibalana Sabai and others vs. Tuticorin Educational Society and others, (2019) 9 Supreme Court Cases 538 and Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 Supreme Court Cases 329. 3. On the other hand, learned Counsel for the petitioner has submitted that the present proceedings are maintainable under Article 227 of the Constitution of India for the reason that as perversity stands committed by learned Executing Court in terms of the impugned order, this petition is maintainable. Learned Counsel has also relied upon a judgment passed by the Coordinate Bench of this Court in CMPMO No. 385 of 2010, titled as Smt. Kavita Arora vs. Amit Arora and others, decided on 11.04.2011. 4. I have heard learned Counsel for the parties and have 3 2025:HHC:37290 carefully gone through the impugned order as well as averments made in the petition and other documents appended therewith. 5. It is not in dispute that in terms of the impugned order the objections that were filed to the execution petition filed under Order 21, Rule 91 of the Code of Civil Procedure by the petitioner herein stand dismissed. Order 21, Rule 103 of the Code of Civil Procedure provides that where any application has been adjudicated upon under Rule 98 or Rule 100 of Order 21 of the Code of Civil Procedure, the order made thereon shall have the same force and shall be subject to conditions as if it were a decree. 6. Hon’ble Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others vs. Tuticorin Educational Society and others, (2019) 9 Supreme Court Cass 538, has been pleased to hold as under:- “11. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors. 1, this Court held that “though no hurdle can be put 4 2025:HHC:37290 against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling 1 (2000) 7 SCC 695 under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai2, pointed out in Radhey Shyam Vs. Chhabi Nath3 that “orders of civil court stand on different footing from the 5 2025:HHC:37290 orders of authorities or Tribunals or courts other than judicial/civil courts. 13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and 2 (2003) 6 SCC 675 3 (2015) 5 SCC 423 prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 7. In Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 Supreme Court Cases 329, Hon’ble Supreme Court of India has been pleased to hold as under:- “49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also 6 2025:HHC:37290 different. (b) In any event, a petition under Article 227 carnnot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singhh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in 7 2025:HHC:37290 subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority". (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the Jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful. 8 2025:HHC:37290 (j)It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.” 9 2025:HHC:37290 8. In terms of the provisions of Article 227 of the Constitution of India, the power of superintendence stands conferred upon the High Court with regard to the Courts or Tribunals within its jurisdiction. The orders which are passed by the Courts and the Tribunals throughout the territory of such High Court are amenable to Article 227 of the Constitution of India and the High Court can go into the legality of said orders in terms of the parameters that have been laid down by Hon’ble Supreme Court of India as to what is the extent of the exercise of power vested in the High Court under Article 227. However, it is also well settled law that Article 227 of the Constitution of India is not a substitute to other statutory remedies which may be available to a party against the order either passed by a Court or a Tribunal, which is within the territorial jurisdiction of such High Court. 9. In the present case, as the order under challenge was passed by the learned Executing Court in an application filed under Order 21, Rule 97 of the Code of Civil Procedure, obviously, the traps of Order 21, Rule 98 of the Code of Civil Procedure come into picture. Such an order could have been assailed keeping in view the provisions of Rule 103 of Order 21 of the Code of Civil Procedure, that is to say that the impugned order was to be treated as a decree and the remedy against the same was by way of an appeal and not under Article 227 of the Constitution of India. 10 2025:HHC:37290 10. As far as the judgment of the Hon’ble Coordinate Bench of this Court cited by learned Counsel for the petitioner is concerned, a perusal thereof demonstrates that this issue was not raised before the Hon’ble Coordinate Bench as to whether in such a circumstance, the party could approach this Court under Article 227 of the Constitution of India or it had to assail the same by treating the same to be a decree. Therefore, the judgment cited by learned Counsel for the petitioner in the considered view of this Court is of no assistance because it does not adjudicate upon the point of law that has been raised on behalf of the respondents herein. Accordingly, in light of above discussion, this petition is dismissed on the ground of maintainability but liberty is granted to the petitioner to seek remedy available to the petitioner in accordance with law. It goes without saying that in case the petitioner does seek such remedy, then the time that has been spent by the petitioner while pursuing this petition shall be taken into consideration by the Court concerned for the purpose of computing the limitation. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge Noevember 06, 2025 (narender)