Appeal No.1007 of 1995,Notice No.964 of 1994,Suit No.1213 of 1986

5th July, 1996

Petitioner Counsel: Mr. KAMAL BHATIA i/b M/s MAHIMTURA & CO.
Respondent Counsel: Mr. M.H.SHAH with Mr. P.N.MODY instructed by Mr. T.A. PUROHIT
Other Counsel: Mr. C.M.KORDE with Mr. R.M.KADAM

Cases Cited:
AIR 1981 SC 1786 [Para 3,7]
AIR 1969 Patna 251 [Para 3]
AIR 1953 SC 198 [Para 6]
AIR 1962 SC 256 [Para 6]
AIR 1965 SC 507 [Para 6]
AIR 1971 SC 2337 [Para 6]
AIR 1974 SC 1719 [Para 6]

JUDGMENT

DR. B.P. SARAF, J.- This appeal gives rise to an important and interesting question of law as to whether an order passed by a Single Judge of this Court under Order XXI Rule 23 of the Code of Civil Procedure, making the notice under Order XXI Rule 22 absolute, is an appealable order under Order XLIII of the Code of Civil Procedure ("CPC") or clause 15 of the Letters Patent.

2. In the instant case, the application for execution having been made more than two years after the date of the decree, the trial court issued a notice contemplated by Order XXI Rule 22 of the C.P.C. to the judgment-debtors (appellants herein) requiring them to show cause why the decree should not be executed against them. Considering the cause shown, the learned Judge made the notice absolute. This appeal is directed against the above order.

3. The counsel for the respondents has raised a preliminary objection in regard to the maintainability of the appeal itself. According to him, no appeal lies against an order of a Single Judge making a notice under order XXI Rule 22 of the CPC absolute either under Order XLIII Rule 1 of the CPC or under clause 15 of the Letters patent. So far as maintainability of appeal under Order XLIII Rule 1 CPC is concerned, it is fairly conceded by the learned counsel for the appellants that no appeal would lie under the said provision as the order in question does not fall in any of the clauses thereof. He, however, contends that appeal would lie against such an order under clause 15 of the Letters patent because, according to him, such an order is a "judgment". Reliance is placed in support of this contention on the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786, and the decision of the Patna High Court in Chandra Choor Deo V. Smt. Krishnawati, AIR 1969 Patna 251.

4. We have carefully considered the rival submissions. Clause 15 of the Letters Patent, so far as relevant, is in the following terms :

" Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court....."

(Emphasis supplied)

It is clear from a plain reading of clause 15 of the Letters Patent that appeal lies under the said clause to the High Court of Bombay from the judgments of a single Judge except those which are specifically excluded. there is no dispute on that count. The controversy is in regard to the true import, definition and meaning of the word "judgment". Counsel for the appellants contends that order of the learned single Judge under Order 21 Rule 23 is a "judgment" within the meaning of clause 15 of the letters patent, whereas, according to the counsel for the respondents, such an order cannot be termed as a judgment. "Judgment" has not been defined in clause 15 of the Letters Patent. Question, therefore, arises what a judgment is.

5. There was a serious controversy as to the real concept and purport of the word "judgment" used in clause 15 of the Letters Patent. The meaning of this word was the subject matter of conflicting decisions of various High Courts for almost a century and there was no unanimity inspite of such length of time. A very strict and narrow interpretation had been placed by the Calcutta High court under which order deciding matters of moment or valuable right of parties without finally deciding the suit would not amount to "judgment" and hence not appealable. The above view was also followed by this Court. On the other hand, the Madras High Court had taken too liberal an approach in the matter. Some of the Courts like Allahabad and Nagpur took the middle path.

6. The meaning and import of the word "judgment" was also considered by the Supreme Court in Asrumati Devi v. Kumar Rupendra Deb, AIR 1953 SC 198; Union of India V. Mohinder Supply Co., AIR 1962 SC 256; Shankarlal Aggarwala V. Shankarlal Poddar, AIR 1965 SC 507; Radhe Shyam v. Shyam Behari, AIR 1971 SC 2337 and Shanti Kumar R. Canji v. Home Insurance Co. of New York. AIR 1974 SC 1719. In Shanti Kumar R. Canji (supra), the Supreme Court observed that in finding out whether the order is a judgment within t he meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. It was further observed that the nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.

7. All these decisions in regard to the meaning and import of the word 'judgment' in clause 15 of the Letters Patent ultimately came to be considered by a three-Judge Bench of the Supreme Court in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786. In that case the Supreme Court made it clear at the outset that Letters Patent being a special law which carves out its own sphere it would not be possible to project the definition of "judgment" appearing in section 2(9) of the Code of Civil Procedure 1908, which defines judgment to mean "the grounds of a decree or order", into the Letters Patent. It was observed (at p.1815):

" The intention, therefore, of the givers of the Letters Patent was the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment, otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense."

The Supreme Court classified "judgments" in three categories, viz., (i) a final judgment, (ii) a preliminary judgment, and (iii) intermediary or interlocutory judgment, and observed that while final judgments and preliminary judgments would be "judgments" within the meaning of the Letters patent so far as intermediary or interlocutory judgments are concerned, every interlocutory order cannot be regarded as a judgment. Only those interlocutory orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. It was stated that in order to be a judgment , such an order must contain the traits and trappings of finality either when the order decides the question in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings. The Supreme Court also gave a number of illustrations of interlocutory orders which may be treated as a judgment. While doing so, the Supreme Court however made it clear that those illustrations were merely by way of sample and not exhaustive. It was observed (at p.1818) :

" We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term 'judgment' would have now been settled and a few cases which may have been left out would undoubtedly be decided by the court concerned in the light of the tests, observations and principles enunciated by us."

8. In the light of the guidelines contained in the above decision of the Supreme Court in Shah Babulal Khimji v. Jayaben (Supra), we may now proceed to examine the question that arises for consideration in the present case whether an order under order XXI Rule 23 is a "judgment" within the meaning of clause 15 of the Letters Patent. For that purpose, it may be expedient to set out the provisions of Order XXI Rule 22 and Order XXI Rule 23 with a view to finding out whether it contains any quality of finality or whether it has the trappings of finality. order XXI Rule 22 requires the court executing the decree to give a notice to the person against whom execution is applied for requiring him to show cause why the decree should not be executed against him if the application for execution is made more than two years after the date of the decree or it is made against the legal representative of a party to the decree or where it is an application for execution of a decree filed under section 44A or it is made against the assignee or receiver in insolvency, unless it is dispensed with under sub-rule (2). Order XXI Rule 22, as it stood at the material time, reads as follows :

" 22. Notice to show cause against execution in certain cases. -

(1) When an application for execution is made -

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree, where an application is made for execution of a decree filed under the provisions of Section 44A, or

(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent.

the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause reasonable delay or would defeat the ends of justice."

Under sub-rule (1) of Rule 23 of Order XXI, the court is required to order the decree to be executed where the person does not appear or does not show the cause to the satisfaction of the court. Sub-rule (2) deals with cases where a person served with a notice under rule 22 of order XXI offers objection to the execution of the decree. In such a case, a duty has been cast on the Court to consider such objection and make appropriate order thereon. Rule 23 of Order XXI reads as follows :

"23. Procedure after issue of notice. - (1) Where the person to whom notice is issued under rule 22 does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make order as it thinks fit."

9. From a conjoint reading of Rules 22 and 23 of Order XXI, it is clear that the provisions of Rule 22 are mandatory. The issue of the notice is a condition precedent to the validity of the execution proceedings, unless it has been dispensed with by the court under sub-rule (2) under certain circumstances. The object of notice under this rule is to furnish an opportunity to the person concerned to urge any objection he may have to the maintainability of the execution. If he does so, the court's decision thereon under Rule 23(2) of Order XXI would operate as res judicata in all further proceedings. If, despite the notice, he fails to appear and show cause against execution, the Court is bound under sub-rule (1) of section 23 to order execution. Thereupon such person will be bound by the order and cannot go behind it. The order will operate as constructive res judicata against him. In such a case, he cannot, at a later stage, raise any objection to the executability of the decree which he might and ought to have raised in reply to the notice under Rule 22. But, if no notice has been given to him under rule 22, it will be open to him to raise at a later stage any objection as to the executability of the decree.

10. From the above discussion, it is clear that an order under rule 23 of Order XXI is an order which affects vital and valuable rights of the parties. It may also work serious injustice to the party concerned. Such an order has all the traits and trappings of finality as it decides the question of executability of a decree. It is, therefore, a judgment within the meaning of clause 15 of the Letters Patent and hence appealable under the said clause.

11. Having held that appeal lies under clause 15 of the Letters Patent against an order under rule 23 of order 21 of the CPC, we may turn to the facts of the present case in order to decide whether the learned single Judge was justified in rejecting the objection of the appellant in regard to the executability of the decree and order the decree to be executed by making the notice under Rule 22 absolute. The decree sought to be executed in this case was consent decree dated 5th May 1986 passed in High Court Suit No.1213 of 1986. The defendants in that suit filed a suit on 15th July 1992 to set aside the above consent decree which was numbered as Suit No.722 of 1993. The plaintiffs (respondents herein) thereupon took out a notice under order XXI Rule 22 of CPC in execution of the decree dated 15th July 1986 against the appellants (original defendants). That notice was duly served on the defendants. By the said notice, the defendants were asked to show cause why the consent decree dated 15th July 1986 should not be executed against them. In response to the said notice, the defendants (present appellants) filed their reply objecting to the execution of the decree on the ground of pendency of the suit for setting aside the consent decree which was sought to be executed and the draft notice of motion therein for stay of execution of the same. The learned single Judge, did not find the above objection tenable and hence made the notice under Rule 22 of Order XXI absolute. It is that order of the learned single Judge which is sought to be challenged by the appellants in this appeal mainly on the ground of pendency of the suit to set aside the consent decree which is the subject matter of execution.

12. We have carefully considered the submissions of the learned counsel for the appellant in the light of the facts of the case set out above. Pendency of a suit to set aside a consent decree on the allegation that it was obtained by frand or misrepresentation per se does not affect the validity and executability of the decree sought to be set aside. The objections envisaged by Rule 22 of order XXI are objections in regard to executability of the decree and not objection in regard to the validity thereof because the executing Court cannot go behind the decree. It has to execute the decree as it stands. The appellant, therefore, cannot put forward the ground of validity of the decree as a ground to challenge the execution of the decree. In view of the above legal position, we are of the clear opinion that in the instant case there is no merit in the objection raised by the appellants under Rule 22 of Order XXI to the executability of the decree and the learned Single Judge was justified in rejecting the same and making the notice absolute. This appeal is, therefore, devoid of any merit and the same is dismissed. In the facts and circumstances of the case, we make no order as to costs.

Appeal dismissed.