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 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)1, A.I.R. 1981 S.C. 1786 and the decision of the Patna High Court in (Chandra Choor Deo v. Smt. Krishnawati)2, A.I.R. 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 no 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 XXI, 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 orders deciding matters of moment or valuable right

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