Judicial Orders of Civil/Commercial Courts Not Amenable to Article 226 Certiorari; Challenge Lies Under Article 227 (Roster Discipline)
1. Introduction
This intra-court appeal before the Orissa High Court arose from an order of a learned Single Judge dated
9 January 2026 in W.P.(C) No.34461 of 2025, whereby the Single Judge quashed coercive execution
orders of the Commercial Court committing the State (judgment-debtor) to civil prison in an arbitral award
execution.
Parties: M/s. NKC Projects Pvt. Ltd. (decree-holder/appellant) versus the
Chief Engineer (Roads-1), Bhubaneswar (judgment-debtor/respondent).
Backdrop: A contractual dispute went to arbitration; an award was passed against the State
of Odisha. The award remained unchallenged or unsuccessfully challenged, making it executable “as a decree”.
The decree-holder initiated execution before the Commercial Court (treating the matter as a “commercial dispute”
under the Commercial Courts Act, 2015). The Commercial Court, faced with repeated adjournments and non-payment,
issued coercive steps including civil prison.
Core issue in the writ appeal: Whether a judicial order of a Commercial Court passed in execution
is amenable to challenge under Article 226 (certiorari) of the Constitution, or whether the proper
constitutional route is Article 227 (superintendence).
2. Summary of the Judgment
The Division Bench (Chief Justice Harish Tandon and Justice M.S. Raman) held that:
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A writ of certiorari under Article 226 is not maintainable against judicial orders
passed by civil courts (including Commercial Courts) in civil proceedings, in view of
Radhey Shyam and another v. Chhabi Nath and others (AIR 2015 SC 3269).
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A challenge to such judicial orders is maintainable under Article 227, whose scope is distinct and
survives for keeping subordinate courts within the bounds of law.
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Since the impugned Single Judge order proceeded as a writ under Article 226 (including by roster categorisation),
it was set aside; the writ petition was revived with a direction to the Registry to renumber/reclassify it as one
under Article 227 and place it before the appropriate roster Bench for expeditious disposal.
3. Analysis
A. Precedents Cited
i) Surya Dev Rai v. Ram Chander Rai and others (AIR 2003 SC 3044)
The judgment traces the earlier doctrinal position where a two-Judge Bench had held that interlocutory judicial
orders of subordinate courts could, in certain grave situations, be challenged via certiorari under Article 226 as
well as supervisory jurisdiction under Article 227. The Division Bench reproduces the well-known “nutshell”
conclusions from Surya Dev Rai, which had effectively expanded the practical overlap between Articles 226
and 227, especially after the curtailment of revision under amended Section 115 CPC.
Role in the present case: Surya Dev Rai is treated as the earlier view that permitted
Article 226 certiorari against judicial orders—an approach later reconsidered and overruled to that extent.
ii) Radhey Shyam and another v. Chhabi Nath and others (AIR 2015 SC 3269)
This is the controlling authority applied by the Division Bench. The three-Judge Bench in Radhey Shyam
answered the reference by holding that judicial orders of civil courts are not amenable to a writ of
certiorari under Article 226, and expressly overruled the contrary view in Surya Dev Rai on that
point, while recognising that Article 227 remains available.
The Division Bench relies particularly on paragraphs 23–25 of Radhey Shyam to impose an “embargo” on
entertaining Article 226 certiorari petitions against civil-court judicial orders, and uses that rule to conclude
that the Single Judge could not have entertained the matter as an Article 226 writ against an execution order.
iii) Harish Karan @ Harish Chandra Karan & others v. Haripada Karan & Another (Writ Appeal No.960 of 2022 decided on 02.05.2023)
This Orissa High Court Division Bench decision is noted for the proposition that certain intra-court appeals are
not maintainable where the Single Judge order is under Article 227, owing to letters patent constraints.
How the present judgment distinguishes it: The Court holds that Harish Karan does not
directly apply here because the present controversy is not about an appealability bar against an Article 227 order,
but about the threshold maintainability of invoking Article 226 certiorari against a judicial order. The
Court also clarifies: if the petition were properly under Article 226, letters patent would allow an intra-court
appeal; however, Radhey Shyam bars Article 226 certiorari in this setting.
The Division Bench notes that Harish Karan had relied on the Full Bench decision in
Mohammed Saud v. Dr. (Maj) Shaikh Mahfooz (affirmed by the Supreme Court). The mention reinforces the
institutional line within the Orissa High Court on the separation between Article 226 and Article 227 tracks and
the consequences flowing from that distinction (including appealability and proper docketing).
The Division Bench reproduces Radhey Shyam’s explanation that these cases did not approve
Surya Dev Rai on the specific point of Article 226 maintainability against judicial orders; they referred to
it for other propositions (e.g., Article 227 scope; constitutional jurisdiction not being whittled down by subordinate
legislation). This removes any argument that Surya Dev Rai had been “validated” by larger Benches.
B. Legal Reasoning
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Identification of the impugned act as a “judicial order” in civil proceedings:
The coercive steps were passed by the Commercial Court in execution. The Court treats this as a judicial order of
a civil court exercising civil jurisdiction.
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Applying the Article 226 bar from Radhey Shyam:
Since judicial orders of civil courts are not amenable to certiorari under Article 226, the writ petition could
not be entertained as an Article 226 challenge to execution orders.
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Preserving Article 227 as the correct constitutional channel:
The Court stresses that neither Surya Dev Rai nor Radhey Shyam removes Article 227 supervision over
subordinate courts. Thus, while Article 226 is barred, Article 227 remains available to correct jurisdictional
transgressions and grave injustice in civil-court proceedings.
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“Caption vs categorisation” problem and roster consequences:
Although the petition was captioned under Articles 226 and 227, it was categorised and placed before a Bench
rostered for Article 226 matters. The Court treats this as significant because roster allocation flows from the
Chief Justice’s administrative power.
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Chief Justice as master of the roster; jurisdictional nullity for roster transgression:
The Court reiterates the principle that once the Chief Justice assigns categories to Benches, a Bench cannot
“usurp” matters outside its assignment. An order passed without roster authority is characterised as
per se illegal and vulnerable as a nullity. Even though no demur was raised earlier, a jurisdictional plea
can be entertained in appeal as it goes to the root.
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Relief crafted as procedural correction, not merits determination:
The Division Bench sets aside the Single Judge order, revives the writ, directs re-numbering as an Article 227
petition, and orders listing before the appropriate roster Bench with expectation of priority disposal.
C. Impact
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Clear procedural route for challenging execution orders:
Litigants seeking constitutional intervention against civil/Commercial Court judicial orders (including execution
orders) must primarily proceed under Article 227, not Article 226 certiorari.
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Docket discipline and reduced forum-shopping:
The decision reinforces that “dual-citation” (Articles 226/227 together) cannot be used to obtain an advantageous
roster. Correct categorisation becomes determinative of which Bench hears the matter.
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Institutional emphasis on roster legitimacy:
By treating roster deviation as a jurisdictional infirmity capable of nullifying orders, the judgment strengthens
administrative-judicial boundaries and encourages early objections to mis-rostered matters.
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Execution and arbitral award enforcement context:
Although the Division Bench does not decide the merits of civil prison/due notice, the procedural holding may
affect how quickly award-holders can defend coercive execution orders from constitutional interference—because
Article 227 review is traditionally narrower and more supervisory than certiorari-style review was sometimes
pleaded to be.
4. Complex Concepts Simplified
- Arbitral award “as a decree”
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Once an award is not successfully set aside, the law allows it to be enforced like a civil court decree through
execution proceedings.
- Execution proceeding
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The post-judgment process by which a decree-holder compels compliance—e.g., attachment of property, garnishee,
and in limited circumstances, civil detention for non-payment as per law.
- Civil prison (detention in execution)
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A coercive mode of execution used in defined situations, typically requiring strict procedural safeguards (notice,
opportunity, satisfaction regarding ability to pay, etc.) under execution law principles.
- Article 226 (certiorari) vs Article 227 (superintendence)
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Article 226 generally issues writs against “State” actions and certain legal wrongs; after Radhey Shyam,
it cannot be used to quash civil court judicial orders by certiorari. Article 227 is a distinct supervisory power
enabling the High Court to keep subordinate courts within jurisdiction and law.
- “Chief Justice is the master of the roster”
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The Chief Justice allocates categories of cases to specific Benches. If a Bench hears a matter outside its roster,
the resulting order can be treated as lacking authority.
- Nullity for lack of jurisdiction
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An order passed without jurisdiction is treated as void in law and liable to be set aside whenever the defect is
properly raised, because jurisdictional defects go to the root of adjudicatory power.
5. Conclusion
The Orissa High Court’s decision establishes a clear operational rule for civil/Commercial Court litigation:
judicial orders in civil proceedings, including execution orders, cannot be challenged by Article 226
certiorari; the constitutional remedy lies in Article 227 supervision. The judgment also
reinforces roster discipline as a jurisdictional imperative—mis-categorisation and hearing by a
non-rostered Bench can vitiate the resulting order. In practical terms, the ruling reshapes litigation strategy in
execution-related challenges (including arbitral award enforcement), directing parties to the correct constitutional
pathway and the correct roster forum.