HEMANT M NABAR Vs. FAROHAR AND CO

JUDGEMENT

(1.) THIS Notice of Motion is taken out by the judgment debtors for setting aside the Insolvency Notice dated 30th August, 1999, taken out by the decree holder. The facts that are material and relevant for deciding this Notice of Motion are that in Appeal No. 636 of 1991 the Division Bench of this Court by order dated 26th June, 1992 passed a consent decree, which according to the decree holder is a decree for payment of money. The decree holder took out an Insolvency Notice dated 30th August, 1999 and served it on the judgment debtor on 20th September, 1999. The Notice was taken out under the provisions of the Presidency Towns Insolvency Act, 1909. On being served with that notice the judgment debtor has taken out this Notice of Motion for setting aside that Insolvency Notice on various grounds including the ground that the decree pursuant to which this Insolvency Notice has been taken out is not enforceable, as the decree holder has not contained a leave of the Court required under the provisions of Order 21, Rule 22 of the Civil Procedure Code for execution of the said decree.

(2.) THE Notice of Motion is opposed by the decree holder. According to the decree holder, the Insolvency Notice cannot be set aside by this Court on the ground that the Decree is not enforceable, and because of the absence of leave of the Court under Order 21, Rule 22 of the Civil Procedure Code.

(3.) IT may be pointed out here that under the provisions of Order 21, Rule 22 of the Civil Procedure Code, when an application for execution is made more than two years after the date of the decree, the Court executing the decree has to issue a notice to the person against whom execution is applied for, requiring him to show cause, on the date to be fixed, why the decree should not be executed against him. It is admitted position before me that the notice as contemplated by the provisions of Order 21, Rule 22 had not been issued to the judgment debtor before the decree holder took out the Insolvency notice. Apart from the contentions that the Court cannot set aside the insolvency notice on the ground that a decree is not executable, one more contention that is raised on behalf of the decree holder is that the notice contemplated by the provisions of Order 21, Rule 22 was not necessary in this case, because an application was made before the Division Bench of this Court, which passed the decree in the year 1995 in Notice of Motion No. 375 of 1995 and that Notice of Motion was dismissed by an order dt. 31st March, 1995. Therefore, relying on the proviso to the Rule 22, Order 21 of C. P. C. , which provides that no such notice shall be necessary in case an application for execution is made within two years from the date of the last order against the party against whom the execution is applied for is made on any provision application for execution. Now, so far as this objection is concerned, in my opinion, this objection has no substance, mainly because the order that is contemplated by proviso to Rule 22 of Order 21 is an order made by the Executing Court on any previous application for execution. The order on which reliance is placed in support of this submission is passed on a Notice of Motion, which was taken out in the appeal, in which decree was passed. It is common ground that Notice of Motion was not taken out in any execution proceedings.