Asok Kumar Ganguly, J.:— The subject-matter of appeal is an order dated 8th October, 2002 passed by the learned Executing Court in Execution Proceeding (G.A No. 1463 of 2002) arising out of Civil Suit No. 839 of 1990.

2. Before this Court, the argument at the initial stage is confined to the question of appeal ability of the order appealed against. Mr. Bachawat, learned senior Counsel appearing on behalf of the respondent, urged by way of preliminary objection, that the appeal itself is not maintainable and as such it should be dismissed, the basic facts of the case may be noted as under.

3. Kanchan Udyog Limited, the respondent herein obtained a decree against the petitioner/appellant McDowell and Company Limited. An appeal was preferred against the said decree by the respondent and there was no stay of the decree but the appeal was being heard by a Division Bench of this Court and ultimately on 18th May, 2000 a Division Bench of this Court allowed the appeal and the Judgment and Decree which was appealed against was set aside. The suit was remanded to the trial Court for fresh trial in the light of the observation made in the judgment of the Appeal Court. Liberty was given to the parties to apply for the amendment of the pleadings before the learned trial Judge. Against the said judgment of the Division Bench, both the parties filed Special Leave Petitions before the Hon'ble Supreme Court. The Hon'ble Supreme Court by an order dated 14.12.2001 disposed of both the appeals in the following terms:—

“Special leave granted.

After hearing the counsel for the parties, we are of the opinion that the High Court instead of setting aside the order of the trial Court and remanding the case for a fresh trial, ought to have decided the appeal before it on merits on the basis of the evidence and the pleadings on record. This the High Court has not done. These appeals are, accordingly, allowed, the impugned judgment dated 18th May, 2000 of the High Court is set aside and the High Court is directed to hear the appeal on merits.”

4. After the order of the Hon'ble Supreme Court on or about 11th of April, 2002 the respondent filed an execution application for execution of the decree dated 2nd December, 1999. In the said execution application, various prayers were made by the respondent. An affidavit was also filed by the appellant and a contested hearing took place. After such a hearing, the learned Judge of the Executing Court passed a reasoned order which is under appeal. The operative portion of which is set out below:

“Accordingly I pass order in terms of prayer (c) only in this application. So far as other mode of reliefs are concerned it will be open for the decree-holder to apply for and/or transfer of the decree for execution of the same before the appropriate Court, where the properties which are sought to be executed. Thus this application is allowed to the extent as above. However, without awarding any cost this time.”

5. Prayer (c) to the tabular statement in terms of which order was granted by the Executing Court is in the following terms:—

“(c) Injunction restraining the defendant/judgment-debtor from selling, alienating and/or disposing of its assets.”

6. Mr. Bachawat while urging the preliminary objection about the maintainability of the appeal contended that the injunction order which was granted by the Executing Court in terms of prayer (c) was passed in exercise of the power of the Executing Court under Section 51(e) of the Code of Civil Procedure. Section 51(e) of the Code is in the following terms:—

“51. Powers of Court to enforce execution:—

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree—

(a) …………….

(b) …………….

(c) …………….

(d) …………….

(e) in such other manner as the nature of the relief granted may require:”

7. The learned Counsel urged that Section 51(e) is the residuary clause and the order of injunction was granted by the Executing Court under Section 51(e) of the Code. Such an order is not appealable, having regard to the provisions of Section 104 of the Code. According to the learned Counsel, the right of appeal is always a creature of the statute. Section 104 of the Code, according to the learned Counsel, provides for appeal under three conditions. First, according to the learned Counsel, such appeal can be filed from certain orders mentioned in Section 104 of the Code itself. Secondly, an appeal can be filed only in respect of those orders, from which appeals are expressly provided in the body of the Code. Thirdly, such appeal can be filed if provided by any other law for the time being in force, and from no other orders. According to the learned Counsel the right of appeal under the Code is only confined to those three situations and in no other case as has been mandated by Section 104 of the Code itself. Learned Counsel further argued that an order passed under sub-section (3) of Section 51 of the Code does not come within the purview of appealable orders mentioned in Section 104 of the Code. The learned Counsel further urged that the provision migrant of injunction under Order 39 of Code is one, which applies only in any suit, but since an execution proceeding is not a suit and is independent of the same, the provision of Order 43 Rule 1 sub-clause (r), of Code which provides for appeal against order passed under Rule 1, Rule 2, Rule 2 A or Rule 10 of Order 39 cannot be made applicable here. Learned Counsel specifically urged that an execution proceeding is independent of the suit and orders passed in an execution proceeding are not made appealable either under Section 104 or under Order 43 Rule 1 of the Code and as such the order appealed against is not appealable. Learned Counsel also submitted that the order is also not appealable under clause 15 of the Letters Patent in view of interpretation given to the expression ‘judgment’ under clause 15 of the Letters Patent in Khimji's case, reported in (1981) 4 SCC 8 : AIR 1981 SC 1786. Learned Counsel also relied on the following judgments in support of his submission.

8. AIR 1970 SC 1168 (Tarapore and Co. Madras v. V/O. Tractors Export, Moscow)

9. AIR 1970 Allahabad 15 (Pratap Narain Agarwal v. Ragho Prasad)

10. AIR 1980 Allahabad 42 (Pratap Narain Agarwal v. Ram Narain Agarwal)

11. AIR 1987 Patna 33 (Masomat Narmada Devi v. Ram Nandan Singh)

12. Mr. Hirak Mitra, learned Counsel for the appellant/petitioner urged that the appeal is maintainable inasmuch as the appeal is against an order of injunction. The learned Counsel also urged that sections of the Code enumerate general principles and the orders of the code relate to details of procedure in connection with those principles. The learned Counsel further submitted that the injunction order, which was issued in the execution proceeding, also conforms to the requirement of Order 39 of the Code and such injunction orders have been made expressly appealable under Order 43 of the Code. The learned Counsel urged that the right of appeal, which is conferred under Section 104 of the Code, will include within itself the right to file an appeal in this proceeding inasmuch as, the order appealed against in this proceeding is an order of injunction. The learned Counsel also submitted that the expression ‘suit’ occurring in Order 39 would also include execution proceeding. The learned Counsel in support of his contentions cited the following judgments.

13. (1998) 1 SCC 500 : AIR 1998 SC 424 (Vanita M. Khanolkar v. Pragna M. Pai)

14. AIR 1956 Madras 163 (P.A. Modeen Batcha Rowther v. F.S. Sulaiman Sahib)

15. AIR 1925 Allahabad 276 (Sheikh Muhammad Habibullah v. R.B Seth Tikam Chand)

16. 19 Calcutta Law Journal 310 (Samed Sheikh v. Naba Gopal Ghose).

17. The learned Counsel also referred to the decision in Khimji's case (supra) in order to contend that the order appealed against is a ‘judgment’ under clause 15 of the Letters Patent and as such is appealable. The learned Counsel further submitted that in Khimji's case the Supreme Court held that the ‘judgment’ under clause 15 of the Letters Patent must be given a wide interpretation than what is given to appealable orders under Order 43 of the Code. The learned Counsel also submitted that in view of such wide interpretation, the learned Judges in Khimji's enumerated a list of the appealable orders in paragraph 120 of the said Judgment. This itself shows that the expression ‘judgment’ under clause 15 of the Letters Patent would mean more appealable orders other than those mentioned in Order 43 Rule 1 of the Code.

18. These are the rival contentions of the parties.

19. This Court is unable to accept the contention of Mr. Bachawat that the appeal is not maintainable. This Court finds that the cases, which have been cited by Mr. Bachawat, do not throw much light on the question, which had been urged by him. The decision of the Full Bench of the Allahabad High Court in the case of Pratap Narain Agarwal v. Ragho Prasad, AIR 1970 Allahabad 15 is on a different question. The learned Counsel Mr. Bachawat relied on paragraph 7 at page 17 of the report. The first part of the said paragraph records the submission on behalf of the respondent and in the second part, the learned Judges recorded that the question whether an execution application is independent of the suit or not in riddled with controversy, and since the question referred to the Full Bench can be decided without deciding that controversial point, the Full Bench thought that it was unnecessary to express an opinion on it. Therefore, the decision cannot be regarded as an authority for the proposition that an execution proceeding is independent of the suit. The next decision relied on by Mr. Bachawat on this aspect was rendered in the case between Pratap Narain Agarwal and Ram Narain Agarwal, reported in AIR 1980 Allahabad 42. The question which fell for consideration before the learned Judges in Pratap Narain Agarwal was “whether there is anything in Act 104 of 1976 demonstrating, that the right to file appeal which accrued on the date of filing of the execution application was taken away” (Paragraph 17). While deciding the said question the learned Judges held that the right to file appeal is a vested one and such right accrues to every party on the date of institution of the suit and is governed by the law prevailing on the date of the suit. But so far as execution proceeding is concerned the same is separate from and is independent of the suit and in the matter of execution proceeding the right of appeal will be governed in accordance with law, which prevails on the date of filing of the execution application. In the case at hand, there is no change of law between the date of filing of the execution proceeding and the date of filing of this appeal. The next decision cited by Mr. Bachawat was rendered between Masomat Narmada Devi v. Ram Nandan Singh, reported in AIR 1987 Patna 33 (Full Bench). The learned Counsel relied on the observations made in paragraph 20 of the judgment.

20. Perusing paragraph 20 in Narmada Devi, I am of the view that the Court was considering the effect of legislative amendment introduced by Code of Civil Procedure (Amendment) Act (104) of 1976 in connection with amendment of Section 47. We are not considering the effect of amendment of Section 47 in this proceeding. Therefore, paragraph 20 does not throw any light on the controversy with which we are concerned in this case. In fact Mr. Bachawat submitted that the observation in para 20 may be regarded as having been expressed by way of obiter. The other decision, which was cited by Mr. Bachawat was in the case of Tarapore and Co. Madras v. V/O. Tractors Export, Moscow reported in AIR 1970 SC 1168. The question which came up for consideration in Tarapore and Co. was construction of the expression ‘Judgment’ and ‘final order’ in the context of Article 133(1) of the Constitution. The learned Judges held that the word ‘Judgment’ in the context of Article 133(1) of the Constitution is the final adjudication by the Court of the rights of parties. An interlocutory judgment even if it decides any issue without a final determination of rights is not a judgment even though the issue decided may be a cardinal one. This Court fails to appreciate the relevance of the ratio in Tarapore and Co. to the facts of this case. It is well settled that the condonation of the expression judgment under Article 133 of the Constitution in the context of appeal from High Court to Supreme Court is radically different from the connotation of the word ‘judgment’ in an intra Court appeal under Clause 15 of the Letters Patent and after the authoritative’ pronouncement of the Supreme Court in Khimji's case on ‘judgment’ under clause 15 of the Letters Patent, there is no scope for relying on interpretation of the word judgment under Article 133 of the Constitution, given in a totally different textual context.

21. The expression judgment under clause 15 of the Letters Patent has been elaborately considered by the Supreme Court in Khimji's case. It has been held that in order to be a judgment the orders ought to decide “matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the parties concerned” (para 115). In earlier paragraphs learned Judges in Khimji held that there is no inconsistency between appeal under Section 104 read with Order 43 Rule 1 of the Code and appeals under Clause 15 of the Letters Patent and there is nothing to show that Letters Patent in any way exclude or override application of Section 104 read with Order 43 Rule 1 [Para 79(1)]. The learned Judges also held in Khimji that appealable orders mentioned under various clauses of Order 43 Rule 1 are ‘matters or moment’ deciding valuable rights of the parties. The learned Judges also held that such orders would fall within the definition of ‘judgment’ (Para 55).

22. An order of injunction passed under Rule 1, Rule 2, Rule 2A, Rule 4 and Rule 10 of Order 39 of the Code is expressly made appealable under Order 43, Rule 1 clause (r) of the Code. Therefore, according to the ratio in Khimji an order of injunction is an order, which comes within the expression ‘matters or moment’ and such orders being judgments are appealable under clause 15, even if it is assumed that the order under appeal against in this case is not appealable under Order 43, Rule 1 of the Code. The applicability of clause 15 of the Letters Patent to the present appeal has not been doubted at all.

23. The learned Counsel for the appellant cited a few decisions in support of his contention that the expression ‘suit’ would also include an execution proceeding. The learned Counsel on this point cited the judgment of Sir Aushutosh Mookherjee in the case of Samed Sheikh v. Naba Gopal Ghose reported in 19 Calcutta Law Journal 310. In that case a suit was filed in the Court of first instance for recovery of arrears of rent and the claim was for less than Rs. 100/-. The suit was dismissed on merits and against the said decree of dismissal, an appeal was filed. On the hearing of the appeal, the respondent was not represented and the appeal was decreed ex parte. Then the appellant made an application under Order 41 Rule 21 of the Code to rehear the appeal in his presence. The Court refused, and an appeal was filed against that order. While hearing the said appeal, the learned Judges of the Appeal Court held that the appeal is barred under Section 153 of the Bengal Tenancy Act and as such dismissed the same. While coming to the said finding the learned Judges referred to the decision of Sir Gooroodas Banerjee in the case of Shyama Churn Mitter…Judgment Debtor, v. Debendra Nath Mukerjee…Decree Holder, ., 4 CWN 269 wherein it has been held that the term suit includes an execution proceeding based on the final decree made in the suit. This Court finds that in Shyama Churn Mitter also the decision was rendered on a construction of Section 153 of the Bengal Tenancy Act. Considering the said Section, the learned Judges held that the terms ‘suit’ occurring in the said Section was not used in a narrow sense so as to exclude proceeding in execution. In coming to this finding learned Judges considered Section 647 of the Code of Civil Procedure, 1822. The learned Counsel also referred to another decision in the case of Sheikh Muhammad Habibullah v. R.B Seth Tikam Chand, reported in AIR 1925 Allahabad 276 (2) in order to contend that the word ‘suit’ includes execution proceeding. The learned Judges in Habibullah were considering the expression ‘suit’ in Section 24 of the Code.

24. The aforesaid three decisions were rendered considering different statutory provision, which are not of such relevance to the present controversy. It may be noted that Section 24 of the Code has suffered an amendment and under sub-section 3(b) of Section 24, it has been clarified that the word ‘proceeding’ would include a proceeding for execution of a decree or order. However this Court is not deciding, in this interlocutory appeal, whether the expression suit in Order 39 of the present Code would include an execution proceeding, since the controversy raised here can be decided without deciding the aforesaid question.

25. This Court holds that Section 51(e) of the Code, as extracted above, is an enabling provision and on the application of a decree-holder for execution of a decree, order can be passed in terms of the provision of that Section.

26. Section 51 makes it further clear that the Court is to exercise its power subject to such conditions and limitation as may be prescribed. The word ‘prescribed’ has been defined in Section 2 sub-section (16) of the Code as meaning ‘prescribed by rules’. Rules have been further defined by sub-section (18) of Section 2 of the Code as rules and forms contained in the First Schedule or made under Section 122 or 123. Order 39, which is in the first schedule of the Code is nothing but a rule contemplated under sub-sections (16) and (18) of Section 2 of the Code and is attracted to an exercise of power under Section 51(e) of the Code.

27. Apart from that if we construe the provision of Order 39 Rules 1 and 2 its application is not confined only to a suit at a pre-decree stage. Such a narrow interpretation militates against such expressions as ‘in execution of a decree’ occurring in Order 39 Rule 1(a) and also against such expressions as ‘at any time after the commencement of the suit, either before or after judgment’ in Order 39, Rule 2 sub-clause (1) of the Code. Therefore, on a proper construction of Section 51(e), read with Section 2(16) and 2(18) thereof and the wide language used in Order 39, Rules 1 and 2, this Court is of the opinion that injunction order which has been granted in the execution proceeding was passed in terms of Order 39, Rules 1 and 2 even though the enabling provision is Section 51(e) of the Code.

28. This Court is of the view that the Section of the Code lays down the general principles but the details in the matter of working out of those principles and the procedural frame have been elaborated in the first schedule of which Order 39, Rules 1 and 2 is a part. The sections of the Code being expressed in general terms create jurisdiction and rules deal with the machinery and, in the absence of a dear conflict, a construction should be adopted which reconciles the two. Here there is no conflict between the provisions of Section 51(e) and Order 39, Rules 1 and 2 of the Code.

29. An order of injunction under Order 39, Rule 1 and 2 is appealable under Order 43(1) sub-clause (r).

30. This Court does not find that Section 104 of the Code stands in the way of such an interpretation. It is well known that statutes much be construed harmoniously with an eye on the overall statutory dispensation and must be construed in a way which furthers and does not frustrate the intention of the statute. An order of injunction by its very nature is an order of restrain on the right of the person against whom the order operates. Therefore, the order affects his rights. An appeal ordinarily would mean the judicial examination by a higher Court of the decision of the first Court. Thus to deprive a person, so affected, of even a right of appeal from the order of restrain will not be a proper interpretation of the provisions of Sections 51(e) and 104 of the Code read with Order 39, Rules 1 and 2, having regard to the object and scheme of those provisions. Apart from that, the order appealed against being a judgment under clause 15 of the Letters Patent is also appealable.

31. Therefore, this preliminary objection is overruled and the appeal, being in order, may be taken up for further consideration.

32. Costs, costs in the appeal.