THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.26236 of 2009 (Dated : 21-06-2010) Between: G.Sriramulu S/o Ganganna Occ: Service, R/o Anantapur, Andhra Pradesh …Petitioner A n d The Government of Andhra Pradesh rep. by its Principal Secretary (Home), Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.26236 of 2009 ORDER: This writ petition has been filed by Sri G.Sriramulu with a prayer to quash the order dated 02.9.2009 passed in E.P.No.38 of 2008 on the file of the Principal District Judge, Chitradurga, Karanataka State. 2. Background facts in a nutshell leading to filing of this writ petition by the Judgment debtor No.2 in E.P.No.38 of 2008 on the file of Principal District Judge, Chitradurga, Karnataka State are: The petitioner is the owner of a vehicle, which involved in an accident causing the death of one Malleshappa (hereinafter referred to as “the deceased”). Respondents 2 to 5 are the dependents of the deceased. They filed M.V.C.No.1095 of 1999 on the file of the Principal District Judge, Chitradurga claiming compensation of Rs.2,50,000/- on account of the loss of their bread-winner in a road accident. The petitioner (J.D.R.No.2) and one Ranganna, who has been arrayed as J.D.R.No.1, are the owner and driver of the crime vehicle respectively. The Principal District Judge, Chitradurga, by an order dated 17.12.2002 granted compensation of Rs.2,50,000/- with interest at 6% P.A as compensation and made the owner and driver as liable for payment of the compensation. It appears that the petitioner, who is the owner of the crime vehicle, preferred an appeal in the High Court of Karnataka. An amount of Rs.25,000/- has been deposited by the petitioner herein before the concerned Court pending appeal in the High Court of Karnataka on 18.8.1999. Respondents 2 to 5 herein filed E.P.No.38 of 2009 on the file of the Principal District Judge-cum-Motor Accident Claims Tribunal, Chitradurga, Karnataka State for realization of the decretal amount of Rs.3,48,080/-. They sought for arrest and detention of the petitioner herein and another person (JDR No.1) in civil prison for realization of the decretal amount. 3. The petitioner as well as J.D.R.No.1 had filed counters resisting the execution proceedings. The petitioner herein took an objection for execution of the decree on the ground that he has no means to pay the E.P amount and his place of residence is outside the jurisdiction of Chitradurga District Court and thus, Chitradurga District Court has no jurisdiction to order his arrest. For better appreciation, I may refer the counter affidavit, which finds place in page No.18 of the material papers. It reads as hereunder:- “COUNTER FILED ON BEHALF OF THE RESPONDENT NO.2 (1) The petition is not maintainable either in law or on facts of the case. (2) The petitioners are put to strict proof of all the allegations made in the petition which are not expressly admitted herein. (3) This Respondent No.2 is resident of Anantapur in A.P.State. This Honourable Court cannot execute the decree for his arrest for want of territorial jurisdiction. This Respondent No.2 has no ready means to pay the E.P amount. Hence, his arrest cannot be ordered. (4) This Honorable Court has no jurisdiction to order arrest of this Respondent No.2 and commit hi m to civil prison. The E.P claim is not correct and is excessive. It is therefore prayed that the Honorable Court may be pleased to dismiss the petition with costs of this 2nd respondent, in the interests of justice.” 4. The learned Principal District Judge, Chitradurga considered the objections raised by the judgment debtor No.1 and the petitioner herein and by order dated 2.9.2009 overruled the objections and ordered issuance of arrest warrants against Judgment Debtors 1 and 2 through a special Ameen and liberty has been given to special Ameen to take the assistance of local police, if necessary, wherever J.D.Rs 1 and 2 are found. Hence, the Judgment Debtor No.2 in E.P.No.38 of 2008 invoked the jurisdiction of this Court under Article 226 of the Constitution of India and sought for the prayer stated supra. 5. For better understanding of the grievance of the petitioner, I deem it appropriate to refer paragraph 7 of the affidavit filed in support of the writ petition, which reads as hereunder:- “ I further submit that, admittedly, I am residing at Anantapur, Andhra Pradesh as such my Fundamental Rights are at stake. It leads to violation of my vested Rights. In view of the fact that, I am the permanent residing of Anantapur coupled with infraction of my statutory Rights, I am invoking the extraordinary jurisdiction of this Hon’ble Court under these peculiar facts and circumstances involved in the lis and this Hon’ble Court has got jurisdiction in the lis”. 6. Notice before admission came to be ordered on 3.12.2009. An interim stay of further proceedings in E.P.No.38 of 2008 on the file of Principal District Judge, Chitradurga also came to be granted on the even date. 7. Respondents 2 to 5 entered appearance through a counsel, filed counter and moved W.V.M.P.No.864 of 2010 with a prayer to vacate the interim stay granted on 03.12.2008. 8. When the vacate stay petition came up for consideration, with the consent of the counsel appearing for the parties, the writ petition is taken up for final disposal. 9. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents 2 to 5. 10. Learned counsel appearing for the petitioner submits that the petitioner resides in Anatapur, which is beyond the territorial jurisdiction of Chitradurga District Court, and therefore, issuance of arrest warrant against the petitioner, who does not reside in the territorial jurisdiction of Chitradurga District Court is ex facie illegal and therefore, the order passed by the District Court in E.P.No.38 of 2008 is liable to be quashed. A further submission has been made that there is error apparent in the order passed by the District Judge, Chitradurga, Karnataka State in E.P.No.38 of 2008 as the learned District Judge, Chitradurga failed to take note of sub- section (4) of Section 39 C.P.C., and thus, the order impugned in the writ petition is liable to be quashed. Learned counsel placed reliance on the following decisions in support of his submissions:- (1) Srimanthu v. Venkatappayya (FB) [1] (2) Sri Santosh Kumar Agarwalla v. State of Orissa[2] (3) Karkal Balakrishna Rao v. State of Mysore rep. by Chief Secretary, Bangalore and another [3] (4) The Statesman Ltd. v. The Fact Finding Committee[4] (5) Salem Advocate Bar Association, Tamil Nadu v. Union of India [5] (6) K.Srinivas Rao v. K.Renuka Bai[6] 11. In Srimanthu’s case ( 1 supra), a Full Bench of Madras High Court held that Section 39 is clear and unambiguous in its meaning and effect; a Court passing a decree must have territorial jurisdiction in respect of property against which it can order execution; if it has not got that jurisdiction it cannot order execution and must send the decree for that purpose to the Court competent to do so. Section 42 confers like powers in execution upon a transferee Court and, it will follow, such Court is subject to the same limitation as the Court which passed the decree. 12. I n Sri Santosh Kumar Agarwalla’s case (2nd supra), the Orissa High Court held that Writ can be granted also where there is reasonable likelihood of damage being done to the rights of the petitioner and not only after actual damage has been done. 13. In Karkal Balakrishna Rao’s case ( 3rd supra), it has been held that where petitioners rights were likely to be affected by enacting the Mysore Land Reforms Act (10 of 1962), it was no argument to show that the authorities had not yet questioned petitioner’s non- compliance with the provisions of the Act. 14. I n The Statesman Ltd.’s case (4 supra), the Calcutta High Court held that in order to maintain an application under Article 226 it is not necessary for the petitioner to show that he has already suffered an actual injury; apprehension of injury or threat of injury is enough. It is thus not correct to say that so long the right is not actually infringed or a party does not actually suffer a writ petition will not maintainable at his instance. 15. In Salem Advocate Bar Association’s case ( 5 supra), the Supreme Court held that Section 39 does not authorize the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be effected by Section 39(4) of the Code. 16. I n K.Srinivas Rao’s case ( 6 supra), a learned Single Judge of this Court held that issuing arrest warrant against the petitioner, who does not reside within the territorial limits of jurisdiction of the Family Court is not legal. Paragraphs 5 and 6 of the cited judgment need to be noted and they read thus:- “( 5 ) SINCE Section 18 of the Act, lays down that the Family Court itself is competent to execute the decrees passed by it in the manner provided by CPC, it is clear that the provisions of CPC relating to execution apply to the orders passed by the Family Court while acting as an executing Court. Since the revision petitioner, admittedly, is not residing within the territorial limits of the jurisdiction of the Family Court, Secunderabad, as his place of residence is shown as 'adilabad', in view of Section 39 (4) CPC, Family Court ought not to have entertained the application for arrest of the revision petitioner and should have, in view of Section 18 (3) of the Act, transmitted the decree to a competent court in Adilabad District to execute the decree against the revision petitioner. For that reason alone the order under revision is not sustainable. ( 6 ) THERE is force in the contention of the learned counsel for the revision petitioner that the Family Court was in error in issuing a warrant of arrest of the revision petitioner without going into the question of means of the revision petitioner. Since CPC is applicable to the decrees passed by the Family Court, the Family Court should have directed the parties to adduce evidence regarding the means of the revision petitioner. But in any event, since I held that the family Court has no jurisdiction to entertain the E. P. I need not go into the question of means. Hence, the revision is allowed. The order under revision is set aside and the EP is remitted to the Family Court, Secunderabad, for being transmitted to a Court in whose territorial jurisdiction the revision petitioner is living or has properties. No costs”. 17. Learned counsel appearing for the respondents submits that the writ petition is not maintainable in this Court since the District Court, Chitradurga which passed the order impugned in this writ petition does not come within the supervisory jurisdiction of this Court. 18. The only issue that calls for adjudication in this writ petition is : Whether the writ petition filed by the petitioner to quash the order dated 02.9.2009 passed in E.P.No.38 of 2008 on the file of the District Court, Chitradurga, Karnataka State is maintainable in this High Court ? 19. POINT: Learned counsel appearing for the petitioner submits that this Court is competent to entertain writ petition to quash the order passed by the District Court, Chitradurga, Karnataka State since a part of the cause of action has arisen within the jurisdiction of this Court. Learned counsel strenuously contends that the petitioner resides at Anatapur, which is within the territorial jurisdiction of this High Court and since the arrest warrant issued by the District Court, Chitradurga, Karnataka State is likely to be executed against the petitioner at Anantapur, which is infraction of his fundamental right, this writ petition is maintainable. 20. Clause (2) of Article 226 of the Constitution of India reads as hereunder:- “ The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the case of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” 21. Indisputably, the District Court, Chitradurga, Karnataka State is not amenable to the jurisdiction of this Court. Virtually, the relief sought for by the petitioner in this writ petition is a Writ of Certiorari. A writ of certiorari is issued by a Superior Court (Supreme Court and High Courts) to an inferior court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior court or body and adjudicate upon the validity of the proceedings or body exercising judicial or quasi- judicial functions. It may be used before the trial to prevent an excess or abuse of jurisdiction and remove the case for trial to higher court. The grounds on which writ of certiorari can be issued are:- (a) Where there is want or excess of jurisdiction; (b) Where there is violation of procedure or disregards of principles of natural justice; (c) Where there is error of law apparent on the face of the record but not error of a fact 22. It is essential that the Court, whose order is sought to be quashed or the authority from whose custody the record is called for must be within the jurisdiction of this High Court. The Court whose order is sought to be quashed must be situated within the jurisdiction of the High Court before which certiorari is sought. It has been held in K. S. RASHID AND SON VS. INCOME TAX INVESTIGATION COMMISSION[7] that there are only two limitations placed upon the exercise of these powers by a High Court under Art. 226 of the Constitution; one is that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs "must be within those territories" and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions, the jurisdiction of the High Courts to issue writs under Art. 226 of the Constitution is to be determined. It was further held that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have adequate or suitable relief elsewhere. 23. Reverting back to the facts of the case on hand, the order sought to be quashed is passed by the District Court, Chitradurga, situated in Karnataka State, which is not within the supervisory jurisdiction of this Court. Hence, a writ of certiorari cannot be issued. 24. For the foregoing reasons, this writ petition is dismissed on the ground of lack of jurisdiction. Consequently, W.V.M.P.No.864 of 2010 stands allowed vacating the interim order granted on 03.12.2009. No order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt. 21-06-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.26236 of 2009 (Dated : 21-06-2010) [1] AIR 1947 Madras 347 [2] AIR 1973 ORISSA 217 [3] AIR 1971 MYSORE 125 [4] AIR 1975 CALCUTTA 14 [5] AIR 2005 SUPREME COURT 3353(1) [6] 2007(1) ALD 691 [7] AIR 1954 SC 207