NISHA RAJ Vs. PRATAP K KAULA

JUDGEMENT

(1.) This is an appeal filed by the appellants under Section 10 of the Delhi High Court Act and Order 43 Rule l(r) of the Civil Procedure Code dated 2.12.1994 passed by the learned Single Judge issuing "notice" to the defendants in IA No. 10356/94 in Suit No. 2630/94. The suit was filed for specific performance of the agreement of sale dated 30.9.1986 executed by Mrs. Kaula (predecessor in title of defendants 1 to 4) in favour of the appellants for sale of property. In the IA, the appellants prayed for a restraint order against the defendants 1 to 4 from parting with possession or encumbering the property in any manner. When the IA came up before the learned trial Judge, the said defendants who had filed caveat took notice and it was ordered "Notice for 4th January,1995". It is against this order that this appeal has been preferred. The defendants 1 to 4 have again appeared through counsel and opposed the grant of any order. They have contended that the appeal is not maintainable.

(2.) The point for consideration is whether an appeal lies under Order 43, Rule l(r) of the Civil Procedure Code against an order passed under Order 39 Rule 3 CPC directing 'notice' to the defendants. Alternatively, question also arises whether, the order of the learned Judge ordering 'notice' is a 'judgment' within Section 10 of the Delhi High court Act,1966 and is appealable.

(3.) So far as the first aspect of the matter is concerned we find that under Order 43 Rule l(r) of the Civil Procedure Code an appeal lies only against "an order" passed under Order 39 rule I, Rule 2 or Rule 2A, Rule 4 or Rule 10. An 'order' under Order 43 Rule l(r) could be one either granting the petitioner relief under Rules 1,2,2A, 4 or 10 of Order 39 or refusing the same or granting the order conditionally. The provision in Order 39 Rule I is not attracted to a case of 'notice' in as much as the grant of 'notice' is specifically covered by Order 39 Rule 3. When such a specific sub-rule covers the case of 'notice', it cannot be .contended that an order ordering notice is also 'an order' under Order 39 Rule 1 CPC. Therefore, the order of the learned Judge is clearly one under Order 39 Rule 3 Civil Procedure Code and if that be so, no appeal is provided in Order 43 Rule 1 (r) Civil Procedure Code against an order under Order 39 Rule 3 CPC. Such a view has been taken by the Allahabad, Madhya Pradesh, Mysore, Andhra Pradesh, Punjab High Courts. (Lakhai vs. Ram Niwas and Ors ( AIR 1987 All 345), H. Bevis Co. vs. Ram Behari (AIR 1951 All 8), Khusi Lal vs. Gorelal AIR 1986 MP 47; Hamumaga vs. Anjanappa (1973 (2) Mys. LJ 96; Madhava Rao vs. N. Sankara Reddi (1983 (1) ALT 340) and lqbal Singh vs. Chanan Singh (AIR 1966 Punjab 165). We agree with this view. We respectfully dissent from the judgment of the Sikkim High Court in Ashok Trading Lama vs. Tshering Wangdi (AIR 1982 Sikkim 20). If the Patna High Court in Shyam Behari Singh vs. B. Biseswar Dayal Singh (AIR 1924. Pat 712), has said that an appeal lies under Order 43 Rule l(r) against an order of 'notice', we respectfully dissent from the same also. This is the position under Order 43 Rule l(r) whether the order ordering 'notice' is passed by a Court subordinate to the High Court or by a learned Single Judge of the High Court.