( 1 ) THIS appeal is directed against impugned order dated 17. 12. 2004 passed in appellants IA No. 8627/2004 in Suit No. 1471/2004 issuing notice to respondents (defendants) for 11. 2. 2005 and at the same time providing that any transfer of interest of the share of plaintiff Nos. 1 and 2 in property bearing No. Okhla factory S-80, Okhla industrial Area, Phase-II, New Delhi would be subject to the outcome of the application.

( 2 ) APPELLANTS had filed a suit for partition and rendition of accounts and permanent injunction of the ancestral/joint family properties and businesses. Along with this suit they also filed IA No. 8627/2004 for ex-parte interim directions that respondents (defendants) be restrained from alienating the property as detailed in schedule-A attached thereto.

( 3 ) APPELLANTS grievance is that learned Trial Judge had only issued notice of the application to defendants and had not granted the ex-parte stay for the entire properties as enlisted in Schedule-A and by doing so had fallen in error by not appreciating their prima facie case and that the balance of convenience also lay in their favour. The learned Trial Judge had also overlooked that the matter was urgent and grant of interim protection would not brook any delay. Notice of this appeal was issued to respondents who were restrained from selling, transferring, alienating or creating any third party interest in the property in question by Court order dated 27. 12. 2004.

( 4 ) WHEN the appeal came up for consideration today, learned senior counsel for respondents Mr. Tulsi challenged the very maintainability of this appeal. He submitted that the learned Trial Judge had only ordered notice in appellants IA no. 8627/2004 which was not appealable either under the provisions of Order 43 CPC or for that matter under Section 10 of Delhi High Court Act. He cited a Division bench judgment of this Court in Nisha Raj and Another Vs. Pratap K. Kaula, 57 (1995) dlt 490 to support his contention.

( 5 ) THIS raises two interesting issues viz whether an order directing notice to the other side was appealable under any provisions of CPC or under Section 10 of delhi High Court Act or even under the Letters Patent and whether a part ex-parte relief granted could be faulted with and an appeal taken against it.

( 6 ) THE grant of a notice in an application for ad interim relief is covered by provisions of Order 39 Rule 3 CPC. This, however, is not appealable under Order 43 rule 1 (r) under which an appeal lies only against an order passed under Order 39 rule 1, 2, 2a, 4 and Rule 10. Rule 3 is specifically excluded and since no appeal is provided against an order under this rule, no appeal would consequently lie against the grant of notice in an ancillary application seeking temporary injunction.

( 7 ) SUCH an appeal would also not lie under Section 10 of the Delhi High court Act, 1966 which provides for an appeal to the Division Bench of the High court against any judgment passed by the learned Single Judge while exercising original jurisdiction because an order issuing notice could not be said to be a judgment within the meaning of that word. The word judgment as is well established refers to adjudication which has the concept of finality attached to it and has also a direct and immediate adverse effect on the party. Every order, thus, is not a judgment, though there may be interlocutory orders which may have trappings and characteristics of a judgment and yet may not be covered by the provisions of Order 43 Rule (1) (a) to (w ).

( 8 ) AN appeal would surely lie against such orders, even though they are interim and interlocutory in nature and in respect of which right of appeal is not created under the CPC, because being a judgment these would be covered under section 10 of the Delhi High Court Act. The same would hold good under Letters patent also which again provides for the requirement of judgment.

( 9 ) APPLYING these well established tests to an order dir