IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18413 of 2011 Smt.Ram Dulari Devi & Ors Versus Baleshwar Singh & Ors ----------- 12. 22.11.2011 I have heard the learned senior counsel, Mr. Kamal Nayan Choubey on behalf of the petitioner and the learned senior counsel, Mr. S.S. Duivedi on behalf of the respondent. (2) This writ application has been filed for setting aside the order dated 08.01.2008 passed by 5th Civil Judge (Sr. Div.), Chapra, Saran in title suit no.247 of 2007 whereby the learned Court below allowed the application filed by the respondent under Order 14 Rule 2 Sub Rule 2 C.P.C. and decided the issue of resjudicata as preliminary issue and dismissed the suit of the plaintiff-petitioner. (3) A preliminary objection is raised by the respondent regarding the maintainability of this writ application. It is stated that the impugned order is a decree within the meaning of Section 2 Sub Section 2 C.P.C. On the contrary, the learned counsel for the petitioner submitted that by the order of the Court, the Civil Revision filed by the petitioner was converted to writ application on the objection of the respondent that Revision is not maintainable and, therefore, the earlier order passed by this Court permitting the petitioner to convert Civil Revision to writ application will operate as 2 resjudicata. (4) It is not disputed that the impugned order is not a decree within the meaning of said expression defined under Section 2 Sub Section 2 C.P.C. It is well settled principles of law that there is no estoppel against statute. When the impugned order is a decree and the petitioner has got alternative efficacious remedy by filing appeal, he cannot be allowed to invoke supervisory jurisdiction as a matter of right. So far submission of the learned counsel for the petitioner that this objection was not raised earlier is concerned, in my opinion, only because no objection was raised by the respondent it cannot be said that writ is maintainable. The jurisdiction of the Court is not dependent on either the objection of the respondent or consent of the respondent. So far the submission that the earlier order whereby the petitioner was permitted to convert the Revision application to a writ application will operate as resjudicata is concerned, I do not agree with the learned counsel because while permitting this petitioner to convert the Civil Revision application, the question whether the impugned order is decree or not was never decided. It was only observed that the Civil Revision is not maintainable. It has not been held that the impugned order is not a decree. (5) The learned counsel for the petitioner further submitted that after such a long period, this point is being 3 raised by the respondent and, therefore, the objection should not be entertained. So far this submission is concerned also, it may be mentioned here that this is the admission stage and not that the application was admitted and was kept pending for several years. Further, on the ground that this application was pending for such a long period, in my opinion, if the order is a decree, it cannot be said that it is not appealable and the petitioner should be allowed to invoke supervisory jurisdiction. While exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court should refrain from exercising such supervisory jurisdiction when the petitioner has got alternative efficacious remedy provided under the statute. The High Court do not exercise original jurisdiction under Article 227 of the Constitution of India. This supervisory jurisdiction is entirely discretionary and can also be exercised suo motu. Therefore, any person as a matter of right cannot invoke supervisory jurisdiction. In the present case as has been stated above, there is no dispute raised either by the petitioner or by the respondent that the impugned order is a decree within the meaning of Section 2 Sub Section 2 and, therefore, it is appealable. (6) In view of the above facts, the writ application is not maintainable. The plaint has not been annexed with the writ application. The learned counsel for the petitioner submitted that the valuation of the suit is less than Rs.2 4 lacs. In such view of the matter, the petitioner is permitted to withdraw this writ application to enable him to file appeal before the appropriate Court. If the appeal is filed within one month from today before the Appellate Court along with a limitation application, the Appellate Court shall consider the fact that the petitioner was pursuing this remedy before this High Court bonafidely and pass order according to law. (7) In the result, this writ application is dismissed as withdrawn with liberty to the petitioner to file appeal before appropriate forum. Saurabh ( Mungeshwar Sahoo, J.)