Case Note & Summary
The case arises from an appeal filed by Dr. Amir Fidahusain and others against an order dated 12th June, 2006 passed by a learned single Judge of the Bombay High Court. The impugned order issued notice to the appellants, who were defendant nos.10 to 15 in the original suit, under Order 21 Rule 22 of the Code of Civil Procedure, 1908 (CPC) to show cause why a consent decree dated 3rd December, 1991 should not be executed against them. The appellants challenged this notice by way of appeal. The court, after hearing the counsel for the appellants, held that the impugned order was merely a procedural step and did not finally adjudicate any rights of the parties. Consequently, the appeal was dismissed as not maintainable. The court did not delve into the merits of the execution proceedings, leaving the appellants to respond to the notice before the executing court.
Headnote
A) Civil Procedure - Execution of Decree - Notice under Order 21 Rule 22 CPC - The court issued notice to the appellants (defendant nos.10 to 15) to show cause why the consent decree dated 3rd December, 1991 should not be executed against them. The appeal against such notice was dismissed as the order was merely procedural and did not finally adjudicate any rights. (Paras 2-3)
Issue of Consideration
Whether the appeal against an order issuing notice under Order 21 Rule 22 of the Code of Civil Procedure, 1908 is maintainable and whether the notice was properly issued.
Final Decision
The appeal was dismissed. The court held that the impugned order issuing notice under Order 21 Rule 22 CPC was merely a procedural step and did not finally adjudicate any rights, hence the appeal was not maintainable.
Law Points
- Order 21 Rule 22 CPC
- Notice to show cause
- Execution of decree
- Consent decree
- Appeal against interlocutory order
Case Details
2006 LawText (BOM) (09) 42
Appeal No. 502 of 2006 in Notice No. 1167 of 2000 in Suit No. 1448 of 1984
Mr. S.T. Tilokchandani i/by M/s. M.K. Ambalal & Co. for the Appellants; Mr. Subodh Joshi i/by M/s. N.K. Sabir for Respondent No.1; Mr. P.P. Paul i/by M/s. Manu Horkusjee & Co. for Respondent Nos.3 and 5
Dr. Amir Fidahusain, Zakir Fidahusain, Humain Fidahusain, Altaf Fidahusain, Sofia Fidahusain
Mohammedhussain Abdullabhai Fidaali, Zenab Ashfaqbhai Fidaali, Taherbhai Abdullabhai Fidaali, Akhtarhusain Abdullabhai Fidaali, Moizbhai Abdullabhai Fidaali, Shabbirbhai Abdullabhai Fidaali, Abashbhai Abdullabhai Fidaali, Smimbai T. Hussain, Huseinabai A. Hussain, Fatimabai Abdullabhai Fidaali
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Nature of Litigation
Appeal against an order issuing notice under Order 21 Rule 22 CPC in execution proceedings.
Remedy Sought
The appellants sought to set aside the order dated 12th June, 2006 issuing notice to them to show cause why the consent decree should not be executed against them.
Filing Reason
The appellants were aggrieved by the issuance of notice under Order 21 Rule 22 CPC calling upon them to show cause why the consent decree dated 3rd December, 1991 should not be executed against them.
Previous Decisions
A consent decree was passed on 3rd December, 1991 in Suit No. 1448 of 1984. The learned single Judge issued notice to the appellants (defendant nos.10 to 15) on 12th June, 2006 under Order 21 Rule 22 CPC.
Issues
Whether the appeal against an order issuing notice under Order 21 Rule 22 CPC is maintainable.
Submissions/Arguments
The counsel for the appellants, Mr. S.T. Tilokchandani, was heard.
Ratio Decidendi
An order issuing notice under Order 21 Rule 22 CPC is a procedural step and does not finally determine any rights of the parties; therefore, an appeal against such an order is not maintainable.
Judgment Excerpts
In our considered view, the impugned order is not appealable.
Procedural History
Suit No. 1448 of 1984 was filed, and a consent decree was passed on 3rd December, 1991. Subsequently, execution proceedings were initiated, and Notice No. 1167 of 2000 was filed. On 12th June, 2006, the learned single Judge issued notice to the appellants under Order 21 Rule 22 CPC. The appellants filed Appeal No. 502 of 2006 against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 21 Rule 22
