LAXMAN BALA SURVE Vs. PESH BUILDERS

JUDGEMENT

(1.) 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 C. P. C. absolute either under Order XLIII, Rule 1 of the C. P. C. or under Clause 15 of the Letters Patent. So far as maintainability of appeal under Order XLIII, Rule 1 of C. P. C. 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) A. I. R. 1981 S. C. 1786 : 1983 (1) Bom. C. R. 37, and the decision of the Patna High Court in (Chandra Choor Deo v. Smt. Krishnawati) A. I. R. 1969 Patna 251.