JUDGMENT
M. Jagannadha Rao, C.J.
(1) This is an appeal filed by the appellants under Section 10 of the Delhi High Court Act and Order 43 Rule l(r) of the Civil Procedure Code dated 2.12.1994 passed by the learned Single Judge issuing “notice” to the defendants in Ia No. 10356/94 in Suit No. 2630/94. The suit was filed for specific performance of the agreement of sale dated 30.9.1986 executed by Mrs. Kaula (predecessor in title of defendants 1 to 4) in favor of the appellants for sale of property. In the Ia, the appellants prayed for a restraint order against the defendants 1 to 4 from parting with possession or encumbering the property in any manner. When the Ia came up before the learned trial Judge, the said defendants who had filed caveat took notice and it was ordered “Notice for 4th January,1995”. It is against this order that this appeal has been preferred. The defendants 1 to 4 have again appeared through counsel and opposed the grant of any order. They have contended that the appeal is not maintainable.
(2) The point for consideration is whether an appeal lies under Order 43, Rule l(r) of the Civil Procedure Code against an order passed under Order 39 Rule 3 Cpc directing ‘notice’ to the defendants. Alternatively, question also arises whether, the order of the learned Judge ordering ‘notice’ is a ‘judgment’ within Section 10 of the Delhi High court Act,1966 and is appealable.
(3) So far as the first aspect of the matter is concerned we find that under Order 43 Rule l(r) of the Civil Procedure Code an appeal lies only against “an order” passed under Order 39 rule I, Rule 2 or Rule 2A, Rule 4 or Rule 10. An ‘order’ under Order 43 Rule l(r) could be one either granting the petitioner relief under Rules 1,2,2A, 4 or 10 of Order 39 or refusing the same or granting the order conditionally. The provision in Order 39 Rule I is not attracted to a case of ‘notice’ in as much as the grant of ‘notice’ is specifically covered by Order 39 Rule 3. When such a specific sub-rule covers the case of ‘notice’, it cannot be .contended that an order ordering notice is also ‘an order’ under Order 39 Rule 1 CPC. Therefore, the order of the learned Judge is clearly one under Order 39 Rule 3 Civil Procedure Code and if that be so, no appeal is provided in Order 43 Rule 1 (r) Civil Procedure Code against an order under Order 39 Rule 3 CPC. Such a view has been taken by the Allahabad, Madhya Pradesh, Mysore, Andhra Pradesh, Punjab High Courts. (Lakhai vs. Ram Niwas and Ors , H. Bevis Co. vs. Ram Behari , Khusi Lal vs. Gorelal ; Hamumaga vs. Anjanappa (1973 (2) Mys. Lj 96; Madhava Rao vs. N. Sankara Reddi (1983 (1) Alt 340) and Iqbal Singh vs. Chanan Singh . We agree with this view. We respectfully dissent from the judgment of the Sikkim High Court in Ashok Trading Lama vs. Tshering Wangdi (AIR 1982 Sikkim 20). If the Patna High Court in Shyam Behari Singh vs. B. Biseswar Dayal Singh (AIR 1924. Pat 712), has said that an appeal lies under Order 43 Rule l(r) against an order of ‘notice’, we respectfully dissent from the same also. This is the position under Order 43 Rule l(r) whether the order ordering ‘notice’ is passed by a Court subordinate to the High Court or by a learned Single Judge of the High Court.
(4) The more important question, however, is whether the order directing ‘notice’ passed by the learned Single Judge is a ‘judgment’ within Section 10 of the Delhi High Court Act,1966. The position in regard to the same is basically governed by what is laid down by the Supreme Court in Shah ‘ Babulal Khimji vs. Jayaben D. Kama . There the Supreme Court held that an order passed by the trial Judge refusing to appoint a receiver or to grant “interim injunction” is a judgment within Clause 15 of the Letters Patent (Bombay), which is similar to Section 10 of the Delhi High Court Act. It was observed (see para 113) that the word ‘judgment’ as defined in the Civil Procedure Code in Section 2(2) is narrow and refers to ‘adjudication’ and that for purposes of Clause 15 of the Letters Patent, a wider an more liberal meaning is to be given to the word ‘judgment’. But at the same time every order passed by the Single Judge cannot be said to be apealable. The word ‘judgment’ has undoubtedly a concept of finality in a broader and not a narrower sense. The Court then considered what is a ‘final judgment’, a ‘preliminary judgment’ and an ‘intermediary or interlocutory judgment’. Most of the interlocutory orders in Order 43 Rule (l)(a) to (w) have the ‘quality of finality’ and are judgments under Clause 15 of the Letters Patent, their Lordships stated. Then they observed (para 112(3): “There may also be interlocutory orders which are not covered by Order 43 Rule I, but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancilliary proceeding.” Their Lordships explained: “Before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect and remote.” While dealing with orders passed in the course of trial, the Supreme Court pointed out (see para 114) that orders exercising discretion in respect of procedural matters are purely interlocutory and cannot be judgments because it will be open to the aggrieved party to make a grievance in respect of the order when appeal is carried against the final judgment. In para 116, the Supreme Court referred to certain other types of interlocutory orders passed at the discretion of the Judge which might amount to ‘judgments’ when a vested right is taken away or rendered negatory.
(5) In the present case before us we are not, however, concerned with procedural orders at the trial. We are here concerned with an interlocutory application under Order 39 Rule 1 Civil Procedure Code by which the property or rights claimed in the, suit are sought to be protected pending suit so that in case the suit is decreed in favor of the party claiming interim relief, the decree can be effective and is not rendered otiose. In other words, matters arising under Order 39 Rule 1 are not procedural steps in the trial. The test here is, as stated in Shah Babulal’s case (para 112(3)), whether the order is an ‘intermediary’ or or ‘interlucotry judgment’ which ‘affects a valuable right of the property. Before such an order can be a judgment, the adverse effect on the party must be direct and immediate, rather than indirect or remote, as stated by the Supreme Court in the same case.
(6) If that be test laid down by the Supreme Court in Shah Babulal’s case in 1981, the question is whether an order of the trial Judge ordering ‘notice’ under Order 39 Rule 32 can be a ‘judgment’. A Division Bench of the Andhra Pradesh High Court consisting of Alladi Kuppuswami (as he then was) and P.A. Choudhary J.held in Dr. Gouri Shankar vs. Deputy Commissioner, Municipal Corporation of Hyderabad (1980(1) Alt 5 (NRC) that an order of the learned Single Judge ordering ‘notice’ is not a ‘judgment’ under-clause 15 of the Letters Patent. The same view was held by another Division Bench consisting of P.A. Choudhary and K. Ramaswamy, J.(as he then was) in K. Subba Rao us. P. Nagaratnamma . .The Bench held:
“CLEARLY,ordering notice does not involve any adjudication of the rights of the parties, nor does it put an end to the proceedings…..”. ‘Ordering of notice can be nothing more than a step towards obtaining the final adjudication. Even where it might cause prejudice, it cannot be described as a judgment. It is a step in aid and such a step in aid is not a judgment within the meaning of Letters Patent.”
‘ We shall next deal with certain further observations made in the last mentioned case. It was argued there that “it is the substances of an order that must be looked into and not the form and that even ordering of notice can, at times amount to a rejection of the petitioner’s prayer for relief.”
ON that basis, it was held that an order of the learned Single Judge ordering ‘notice’ is not a ‘judgment’. We are in entire agreement with this view, subject to the following exceptional class, of cases. In the last case, the Andhra Pradesh High Court referred to another aspect relating to the possibility or otherwise of a retrieval or restitution, as follows: “There is scope for retrieving of the situation and there is scope for restituting. That would exclude the possibility of any adverse effects being produced. In our view, this substance theory of adverse effects’ has, therefore, no substance. ”
(7) We want to explain this aspect a little more in detail which concerns some rare situations. There may be cases where there is absolutely no scope of retrieving the situation or no scope for restitution. Such cases, according to us, may be rarest of the rare but in those cases an order ordering ‘notice’ may indeed be a ‘final’ order. We are having in mind cases where a person is being deported to a foreign country and seeks an injunction and where in such a situation, the Court orders ‘notice’. Again, goods might be in the process of being exported beyond the territorial waters. In these cases the Court may not be having any power to restitute. Take again a case of execution by a death sentence and an affected party seeking an injunction and the Court ordering ‘notice’. Here too, restitution is impossible. There could also be other rare cases falling in this category. We are mentioning these rare category of cases for here the impact of the order is not only ‘direct’ or ‘immediate’ as stated in Shah Babulal’s case but there is no chance of any kind of restitution or retrieval. Nor is case of monetary compensation help. In this class of cases, the order issuing ‘notice’ in our opinion clearly amounts to a total refusal of relief and such orders alone could be appealable as ‘judgments’. Here we may make it clear that cases of demolition of buildings do not fall in this category. There monetary compensation is possible. Subject to the above reservation applicable only in very rare cases, we are in entire agreement with the decision of the Andhra Pradesh High Court.
(8) Coming to the case before us, an application for injunction to restrain the defendants from parting with possession or encumbering the property where ‘notice’ alone is issued, the said order cannot, by any stretch of imagination, fall within the category of rare exceptions mentioned by us above. Further if in the meantime, possession is lost or alienation is made by the defendant. Section 52 of the Transfer of Property Act protects. Further, at an later stage, restoration of status quo order is possible under Sections 144 to 151 Civil Procedure Code while in other cases, compensation can be paid. For example if a building is constructed in the meantime on the property after ‘notice’, and before grant of any injunction,, the Court has the power, if need be, to have it demolished. If possession is lost, it can be restored. If property is encumbered, the same can be held to be subject to result of the ultimate decree.
(9) We are therefore of the view that in the present case, that the order of the learned Judge ordering ‘notice’ under Order 39 Rule 3 Civil Procedure Code is not a ‘judgment’ under Section 10 of the Delhi High Court Act and hence the appeal is not maintainable. The appeal fails and is dismissed.