R. M. LODHA, J. : - Heard Mr. S. T. Tilokchandani, the counsel for the appellants.

2. This Appeal is directed against the order dated 12th of June, 2006, whereby the learned single Judge issued notice to the present appellants (defendant Nos. 10 to 15), under Order 21, Rule 22 of the Code of Civil Procedure to show cause why the consent decree passed on 3rd of December, 1991 be not executed against them.

3. In our considered view, the impugned order is not a judgment under clause 15 of the Letters Patent and, therefore, the Appeal against the said order is not maintainable. The impugned order is neither interlocutory nor intermediary judgment as categorized by the Supreme Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania, AIR 1981 SC 1786. It does not possess the characteristics and trapping of finality inasmuch as it decides nothing and is only initiatory, asking the present appellants to show cause why the consent decree be not executed against them.

4. The learned counsel for the appellants however, relied upon the Division Bench judgment of this Court in the case of Laxman Bala Surve vs. M/s Posh Builders, Bombay, 1996(2) Mh.L.J. 858, in support of his contention that the impugned order is appealable under clause 15 of the Letters Patent.

5. In Laxman Bala Surve s case, the issue that arose for consideration before the Division Bench was whether an order passed by a single Judge under Order 21, Rule 23, is an appealable order under clause 15 of the Letters Patent or Order XLIII of the Code of Civil Procedure. It was considered therein that such order is not appealable under Order XLIII. However, the Division Bench held that such an order is appealable under clause 15 of the Letters Patent. It is pertinent to note that the issue that fell before the Division Bench for consideration in Laxman Bala Surves case, was with reference to the order passed under Order 21 Rule 23. While dealing with the said aspect, the Division Bench in para 9 of the judgment held thus : -

"9. From a conjoint reading of Rules 22 and 23 of Order XXI, it is clear that the provisions of Rule 22 are mandatory. The issue of the notice is a condition precedent to the validity of the execution proceedings, unless it has been dispensed with by the Court under sub -rule (2) under certain circumstances. The object of notice under this rule is to furnish an opportunity to the person concerned to urge any objection he may have to the maintainability of the execution. If he does so, the Courts decision thereon under Rule 23(2) of Order XXI would operate as res judicata in all further proceedings. If, despite the notice, he fails to appear and show cause against execution, the Court is bound under sub -rule (1) of Rule 23 to order execution. Thereupon such person will be bound by the order and cannot go behind it. The order will operate as constructive res judicata against him. In such a case, he cannot, at a later stage, raise any objection to the executability of the decree which he might and ought to have raised in reply to the notice under Rule 22. But, if no notice has been given to him under Rule 22, it will be open to him to raise at a later stage any objection as to the executability of the decree."

6. In the present case, the stage of the decision under Order 21, Rule 23 has not arisen inasmuch as by the impugned order, the learned single Judge has issued notice to the appellants (defendant Nos. 10 to 15) to show cause as to why the consent decree be not executed against them. There is no order passed by the learned single Judge, ordering execution of the consent decree against the appellants so far. Upon receipt of the show cause notice, that the Court has now issued pursuant to the impugned order, the appellants shall have the right to appear and show cause to the satisfaction of the Court as to why the consent decree should not be executed against them. The Court shall consider the cause shown by the appellants and pass an app