BABY Vs. JOSE

JUDGEMENT

(1.) This unnumbered petition poses a question whether a caveat petition under S. 148A of the Civil Procedure Code, for short, the 'Code', can be entertained against a proceeding instituted under Art.227 of the Constitution of India.

(2.) Petitioner is the second respondent in an interlocutory application filed in a civil miscellaneous appeal, which had been disposed by the Sub Court, Ottapalam in his favour. An interim injunction applied for in that interlocutory application against the petitioner, the respondent in that petition, had been dismissed. Apprehending that the applicant in that interlocutory application is likely to move an Original Petition challenging the adverse order passed against him, before this Court, petitioner has moved the above said petition under S. 148A of the Civil Procedure Code, 1908, for short, the 'Code', styling himself as a Caveator, to seek notice to him before any interim order is passed in such Original Petition. Registry raised an objection that no caveat petition is entertainable against an Original Petition moved under Art. 227 of the Constitution of India. On the request made by the counsel for the petitioner, the question raised has come up for consideration.

(3.) The learned counsel for the petitioner Sri. P. Jayaram, adverting to some judicial precedents contends that in the Original Petition filed under Art.227 of the Constitution of India, provisions of the Code are applicable, and, therefore, having regard to S.141 of the Code, a caveat filed under S.148A of the Code is entertainable in such proceedings. What this Court exercises in proceedings under Art.227 of the Constitution of India when a challenge is raised against any order passed by a subordinate court, according to the learned counsel, is akin to the revisional jurisdiction under S. 115 of the Code, and that being so, a caveat petition filed under S. 148A of the Code is perfectly maintainable in an Original Petition filed under Art.227 of the Constitution of India. Reliance is placed by the counsel on Musaji Mohamadali Master and Sons & Anr. v. Gu- lamali Dadabhai Amreliwala,2005 107 BLR 179 (188)) and M/s. Shakti Trading Co. v. District Judge, Bareilly & Ors.,1997 AIHC 2931to contend that the provisions of the Code are applicable to proceedings under Art. 227 of the Constitution of India. The learned counsel has also placed reliance on the observations made in Surya Dev Rai v. Ram Chander Rai & Ors, 2003 3 KerLT 490, Radhey Shyan & Anr. v. Chhabi Nath & Ors, 2009 5 SCC 616 and Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, 2010 3 KerLT 86to urge that the exercise of jurisdiction under Arts. 226 and 227 of the Constitution of India stands on substantially different footing and so far as the jurisdiction under Art.227 of the Constitution of India it is not original nor appellate but one of administrative and judicial superintendence. A proceeding under Art.227 of the Constitution of India is not strictly governed under the Original Side Rules of the High Court and in such proceedings, the provisions of the Code, so far as applicable, can be resorted to, submits the counsel. Objection raised by the Registry that the caveat petition moved by the petitioner is not entertainable in respect of an Original Petition filed under Art.227 of the Constitution of India is not sustainable and has to be overruled, submits the counsel.