Full Judgment Text
NON-REPORTABLE
2025 INSC 1334
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1026-1027 OF 2019
BHARAT KANTILAL DALAL (DEAD)
THROUGH LR. … APPELLANT
VERSUS
CHETAN SURENDRA DALAL & ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NOS.1028-1029 OF 2019
JUDGMENT
ALOK ARADHE, J.
These appeals call in question the correctness of orders
dated 06.03.2018 passed by a Division Bench of the High Court
of Bombay in Letters Patent Appeals, namely Appeal No(s). 320
and 372 of 2015. By the aforesaid orders, the High Court has
stayed two orders passed by the learned Single Judge dated
18.12.2014 passed in chamber summons no.243 of 2014 and
chamber summons (L) no.1297 of 2013 in Execution Application
(L) No. 1036 of 2013. The relevant facts for deciding these appeals
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2025.11.20
13:26:50 IST
Reason:
briefly stated are as under.
1
FACTS
2. The appellant is the son of late Mr. Kantilal Dalal
(hereinafter, referred to as ‘father’) and nephew of late Mr.
Girdharilal Dalal (hereinafter, referred to as ‘uncle’). The first
respondent is the nephew of the appellant, and the son of second
respondent. The other respondents are cousins of second
respondent. A fracture in the joint family-steeped in business
dealings, shared ventures and mutual expectations, led to discord
about the accounting and distribution of family funds. To resolve
the dispute with his father in relation to the family assets, the
appellant sought the intervention of sole arbitrator, Shri Dilip J
Thaker. The sole arbitrator passed an arbitral award on
12.07.2010 in favour of the appellant. The father addressed the
communication dated 23.07.2010 to the arbitrator alleging unfair
conduct of arbitral proceedings and signalling his intent to
challenge the arbitral award. A caveat was filed by the appellant,
but challenge to the arbitral award dated 12.07.2010 under
Section 34 of the Arbitration and Conciliation Act, 1996 (the Act)
did not materialise.
2
THE ARBITRAL AWARD TRAVELS ACROSS JURISDICTIONS: -
3. The appellant initiated the execution proceeding for
execution of the arbitral award in Dubai, where the father
resided. The Court in Dubai, declared the father as judgment
debtor. However, the arbitral award remained unsatisfied. The
appellant moved the High Court of Singapore which also
recognized the arbitral award and held the father liable for US
$12,951,078.03, a garnishee notice followed. The father
responded to the notice by denying the knowledge of the
execution proceeding and claiming residence in London. The
uncle filed an affidavit asserting that his brother i.e., the father
was not the sole beneficiary of Auro Mira Services Private Limited
i.e., the concerned company but both of them were the directors
and shareholders of the company. It was averred that corporate
separateness insulated him from the repercussions of the arbitral
award.
The father had executed a Will dated 16.09.1994 in favour of
4.
the uncle. The father expired on 08.03.2013. The appellant,
therefore, required the uncle, who was a substantial beneficiary
under the aforesaid Will executed by the father, to disclose the
3
details of assets of the father. The uncle refused to divulge the
details of the assets on the ground that the arbitral award dealt
with the properties in which he had personal stakes, and he was
not bound by the arbitral award dated 12.07.2010 passed in
favour of the appellant, as he is not the party to the same. The
uncle filed a Civil Suit, namely suit no. 470 of 2013 in the High
Court of Bombay, seeking a declaration that the arbitral award
dated 12.07.2010 is a nullity. The learned Single Judge by an
order dated 08.07.2013 directed the appellant to file an affidavit
in reply within a period of two weeks. The appellant thereupon
filed an affidavit in reply in the said civil suit, which is pending.
EXECUTION PROCEEDING IN BOMBAY: -
5. The appellant filed Execution Application (L) no.1036 of
2013 in the High Court seeking execution of arbitral award dated
12.07.2010. The appellant also filed a chamber summons no.243
of 2014, in the execution application seeking issuance of notice
under Order 21 Rule 22 of the Code of Civil Procedure (for short
“CPC”) and various reliefs inter alia for disclosure of assets,
issuance warrants of attachment, sale and arrest.
4
THE ORDERS: -
The learned Single Judge by an order dated 18.12.2014,
6.
held that execution must proceed and a notice under Order 21
Rule 22 of the CPC should issue. The learned Single Judge
further directed the respondents not to create any third-party
rights in respect of share, entitlement of the father in the
property situate in London. It was also directed that in case the
respondents create any third-party rights in respect of the
properties which belong to the father, the same shall be subject
to further orders of the Court.
7. The uncle filed a chamber summons (L) No. 1297 of 2013
raising various objections, to the execution of the arbitral award
and assailed the same on the ground that it is a nullity.
8. The learned Single Judge, by another order passed on
18.12.2014, on an application of uncle i.e. chamber summons (L)
no.1297 of 2013, inter alia , held that, the arbitral award which
has attained finality can neither be set aside under the Act nor
can the same be declared as nullity. It was further held that the
chamber summons taken out by the uncle is premature. It was
5
also held that execution shall proceed in accordance with law,
and the chamber summons was accordingly disposed of.
9. The respondents assailed the validity of the orders dated
18.12.2014 passed in chamber summons (L) no.1297 of 2013
and chamber summons no. 243 of 2014, in Letters Patent
Appeals, namely Appeal No.320 and 372 of 2015, before the
Division Bench of the High Court. The Division Bench by orders
dated 06.03.2018, admitted the appeals subject to
maintainability of the same, and thereafter, by separate orders
passed on the same day admitted the appeal and stayed the
orders dated 18.12.2014 passed by the learned Single Judge in
chamber summons (L) no.1297 of 2013 and chamber summons
no.243 of 2014. In these Civil Appeals, validity of orders dated
06.03.2018 passed by Division Bench of the High Court in
Appeal No(s). 320 and 372 of 2015, have been challenged.
SUBMISSIONS: -
10. Learned Senior Counsel for the Appellant, while inviting the
attention of this Court to Sections 5, 36, 37 and 50 of the Act,
submitted that, against the orders dated 18.12.2014 passed by
the learned Single Judge in the Chamber Summons, no Letters
6
Patent Appeals lie, as the Act is a complete code in itself. In
support of the aforesaid submissions, reliance has been placed
on decisions of this Court in Paramjeet Singh Patheja v. ICDS
1 2
Ltd. , Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. , Union
3
of India v. Simplex Infrastructures Ltd. , Kandla Export
4
Corporation and Anr. v. OCI Corporation and Anr. , Sundaram
5
Finance Ltd. v. Abdul Samad and Anr. , Amazon.Com NV
6
Investment Holdings LLC v. Future Retail Ltd. and Ors. , Noy
7
Vallesina Engineering Spa v. Jindal Drugs Limited & Others ,
v.
PASL Wind Solutions Private Limited GE Power Conversion
8
India Private Limited and Electrosteel Steel Limited v. Ispat
9
Carrier Private Limited , and decisions of the Bombay High
10
Court in Jet Airways (India) Ltd. v. Subrata Roy Sahara and
11
Sushila Singhania v. Bharat Hari Singhania .
11. It is further submitted that the Division Bench of the High
Court grossly erred in not assigning any reasons while admitting
1
(2006)13 SCC 322
2
(2011) 8 SCC 333
3
(2017) 14 SCC 225
4
(2018) 14 SCC 715
5
(2018) 3 SCC 622
6
(2022) 1 SCC 209
7
(2021) 1 SCC 382
8
(2021) 7 SCC 1
9
(2025) 7 SCC 773
10
2011 SCC OnLine Bom 1379
11
2017 SCC OnLine Bom 360
7
the appeals and for staying the operation of the orders dated
18.12.2014 passed by the learned Single Judge. It is also pointed
out that notice under Order 21 Rule 22 (1) of the CPC is yet to be
issued to the respondents. It is urged that the chamber summons
filed by the respondents in the execution proceedings, seeking a
declaration that the arbitral award dated 12.07.2010 is a nullity
is misconceived, and the chamber summons filed by respondents
was premature. It is also pointed out that the respondents have
already filed the Civil Suit seeking a declaration that the arbitral
award dated 12.07.2010 is a nullity. It is, therefore, prayed that
the impugned orders dated 06.03.2018 be quashed and set aside
and the learned Single Judge be directed to proceed with
execution expeditiously.
12. On the other hand, learned Senior Counsel for the
Respondents contended that the respondents are strangers to the
arbitration proceeding and the arbitral award dated 12.07.2010,
and they do not have locus to challenge the same under the Act,
as the Act envisages the challenge to the arbitral award in the
manner indicated, therein by a party. It is, therefore, contended
that the Letters Patent Appeals filed by the respondents are
8
maintainable. It is also pointed out that, while deciding the
chamber summons, the learned Single Judge has held that the
arbitral award (i) is not without jurisdiction, (ii) not accentuated
by fraud, (iii) not barred by limitation and (iv) is not against the
public policy. It is further contended that the learned Single
Judge ought to have appreciated that the arbitral award deals
with properties of which the respondents are either the owners or
have substantial interest. It is, therefore, urged that appeals are
liable to be dismissed.
ANALYSIS: -
13. We have considered the rival submissions and have perused
the record. Before proceeding further, it is apposite to take note of
the relevant statutory provision, namely Order 21 Rule 22, which
is extracted below for the facility of reference.
“22. Notice to show cause against
execution in certain cases.—
(1) Where an application for execution is
made—
(a) more than [two years] after the
date of the decree, or
(b) against the legal representative of
a party to the decree [or where an
application is made for execution of
9
a decree filed under the provisions of
section 44A], [or]
(c) against the assignee or receiver in
insolvency, where the party to the
decree has been adjudged to be an
insolvent,
the Court executing the decree shall
issue a notice to the person against
whom execution is applied for requiring
him to show cause, on a date to be fixed,
why the decree should not be executed
against him:
Provided that no such notice shall be
necessary in consequence of more than
[two years] having elapsed between the
date of the decree and the application for
execution if the application is made
within [two years] from the date of the
last order against the party against
whom execution is applied for, made on
any previous application for execution,
or in consequence of the application
being made against the legal
representative of the judgment-debtor if
upon a previous application for
execution against the same person the
Court has ordered execution to issue
against him.
(2) Nothing in the foregoing sub-rule
shall be deemed to preclude the Court
from issuing any process in execution of
a decree without issuing the notice
thereby prescribed, if, for reasons to be
recorded, it considers that the issue of
such notice would cause unreasonable
delay or would defeat the ends of justice.
10
14. Thus Order 21 Rule 22 mandates that where execution is
sought (a) more than two years after the decree or (b) against the
legal representative of judgment debtor or (c) against the assignee
or receiver in insolvency, where party to the decree has been
adjudged to be an insolvent, the executing court shall issue
notice to the person against whom execution is sought, requiring
him to show cause, why the decree should not be executed.
15. The use of word ‘shall’ in Order 21 Rule 22 (1) admits of no
ambiguity and the executing court is under an obligation to issue
notice to the person against whom a decree is sought to be
executed in the circumstances enumerated therein. The mandate
of Order 21 Rule 22 (1) stands on two independent and mutually
reinforcing foundations (i) the statutory compulsion-the use of
word ‘shall’ in the provision leaves no discretion to the executing
court in the circumstances enumerated therein, (ii) it
incorporates the principles of natural justice as the legal
representative of the deceased cannot be proceeded unless he is
given an opportunity to contest the execution. Thus, the
requirement of notice under Order 21 Rule 22 (1) to the persons
enumerated therein is not a mere procedural courtesy but is the
11
very foundation of the jurisdiction when the execution is sought
against the estate of the deceased judgment debtor. The
foundation of this requirement was laid down by the Privy
12
Council in Raghunath Das v. Sundardas Khetri , wherein it
was held that notice under Section 248 of the Old Code,
(equivalent to Order 21 Rule 22) is a condition precedent to
jurisdiction of the Court to proceed with execution against the
legal representative of a deceased judgment debtor.
16. Now, we may advert to Order 21 Rule 23 of the CPC which
reads as under:
23. Procedure after issue of notice . —
(1) Where the person to whom notice is
issued under [rule 22] does not appear
or does not show cause to the
satisfaction of the Court why the decree
should not be executed, the Court shall
order the decree to be executed.
(2) Where such person offers any
objection to the execution of the decree,
the Court shall consider such objection
and make such order as it thinks fit.
17. The aforesaid rule prescribes the procedure after issue of
notice. Order 21 Rule 23 (1) provides that where a person to
whom notice is issued under Rule 22 does not appear or does not
12
AIR 1914 PC 129
12
show cause to the satisfaction of the Court why the decree should
not be executed, the Court shall order the decree to be executed.
Order 21 Rule 23 (2) provides that where any person offers any
objection to the execution of the decree the court shall consider
such objection and shall make such order as it thinks fit.
APPLICATION OF AFORESAID PROVISIONS TO THE PRESENT
CASE: -
18. In the backdrop of relevant statutory provisions, we may
advert to the facts of the cases in hand. Admittedly, the father of
the appellant had executed a Will on 16.09.1994 in favour of his
brother. From perusal of the cause title of the execution
proceeding, it is axiomatic that the uncle was arrayed in
execution proceedings as legal representative/executor of the Will
dated 16.09.1994 of the father and not in his individual capacity.
The respondents, therefore, cannot be treated as third party to
the arbitral award.
19. The Act is a self-contained code and is founded upon
principles of party autonomy, expedition and finality. The
legislative design of the Act restricts judicial interference. The
orders of the learned Single Judge dated 18.12.2014, were passed
13
in course of execution of arbitral award and are, therefore,
traceable to the Act and not to CPC. The execution of the arbitral
award is sought against the respondents in their capacity as
executors of the aforesaid Will. The respondents step into the
shoes of judgment debtor of the limited purpose of the execution.
The Letters Patent Appeals filed by respondents were therefore
not maintainable. The Division Bench of the High Court erred in
admitting the appeals subject to maintainability of the same and
in admitting the appeals without assigning any reasons.
20. A careful scrutiny of the order dated 18.12.2014 passed in
chamber summons no.243 of 2014, reveals that the learned
Single Judge has held that the issue with regard to attachment of
properties shall be dealt with at an appropriate time, upon an
application made in accordance with law. It has further been held
that a notice under Order 21 Rule 22 (1) of the CPC to proceed in
execution of the arbitral award is granted.
21 . Thus, it is axiomatic that the notice under Order 21 Rule
22 (1) of the CPC is yet to be issued to the respondents. Once a
notice is issued to the respondents, it is open for them to raise an
objection to the execution of the arbitral award under Order 21
14
Rule 23(2) of the CPC. However, we find that the learned Single
Judge while deciding the chamber summons (L) No.1297 of 2013,
has made observations/findings though not determinative, have
the potential to prejudice the respondents in their objections
under Order 21 Rule 23 (2) of the CPC, which they are statutorily
entitled to raise on receipt of notice. The respondents, therefore,
must be placed in the position, the law intended them to occupy
i.e. the legal representatives are entitled to be heard before their
estate is saddled with execution.
CONCLUSION: -
22. In view of foregoing discussion, impugned orders dated
06.03.2018 passed by the Division Bench of the High Court of
Bombay in Letters Patent Appeals, namely Appeals No.320 and
372 of 2015 are quashed and set aside. The aforesaid Letters
Patent Appeals are dismissed as not maintainable. In order to
restore the execution proceeding to the track mandated by the
CPC, as well as in the facts and circumstances of the case, we
deem it appropriate to issue following directions: -
(i) The learned Single Judge in Execution Application (L) No.
1036 of 2013, shall issue notice to respondents under Order 21
Rule 22 (1) of the CPC.
15
(ii) On receipt of such notice, it would be open for the
respondents to prefer objections to the execution proceedings
under Order 21 Rule 23 (2) of the CPC.
(iii) The objections which may be preferred by the respondents
shall be dealt with, on its own merit, by the learned Single Judge
without being influenced by any of the observations/findings
contained in the orders dated 18.12.2014 passed in chamber
summons no(s). 243 of 2014 and 1297 of 2013 in Execution
Application (L) No.1036 of 2013.
23. The appeals are accordingly disposed of on above terms.
……………….……………J.
[SANJAY KUMAR]
..…….…………………….J.
[ALOK ARADHE]
NEW DELHI;
NOVEMBER 20, 2025.
16
2025 INSC 1334
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1026-1027 OF 2019
BHARAT KANTILAL DALAL (DEAD)
THROUGH LR. … APPELLANT
VERSUS
CHETAN SURENDRA DALAL & ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NOS.1028-1029 OF 2019
JUDGMENT
ALOK ARADHE, J.
These appeals call in question the correctness of orders
dated 06.03.2018 passed by a Division Bench of the High Court
of Bombay in Letters Patent Appeals, namely Appeal No(s). 320
and 372 of 2015. By the aforesaid orders, the High Court has
stayed two orders passed by the learned Single Judge dated
18.12.2014 passed in chamber summons no.243 of 2014 and
chamber summons (L) no.1297 of 2013 in Execution Application
(L) No. 1036 of 2013. The relevant facts for deciding these appeals
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2025.11.20
13:26:50 IST
Reason:
briefly stated are as under.
1
FACTS
2. The appellant is the son of late Mr. Kantilal Dalal
(hereinafter, referred to as ‘father’) and nephew of late Mr.
Girdharilal Dalal (hereinafter, referred to as ‘uncle’). The first
respondent is the nephew of the appellant, and the son of second
respondent. The other respondents are cousins of second
respondent. A fracture in the joint family-steeped in business
dealings, shared ventures and mutual expectations, led to discord
about the accounting and distribution of family funds. To resolve
the dispute with his father in relation to the family assets, the
appellant sought the intervention of sole arbitrator, Shri Dilip J
Thaker. The sole arbitrator passed an arbitral award on
12.07.2010 in favour of the appellant. The father addressed the
communication dated 23.07.2010 to the arbitrator alleging unfair
conduct of arbitral proceedings and signalling his intent to
challenge the arbitral award. A caveat was filed by the appellant,
but challenge to the arbitral award dated 12.07.2010 under
Section 34 of the Arbitration and Conciliation Act, 1996 (the Act)
did not materialise.
2
THE ARBITRAL AWARD TRAVELS ACROSS JURISDICTIONS: -
3. The appellant initiated the execution proceeding for
execution of the arbitral award in Dubai, where the father
resided. The Court in Dubai, declared the father as judgment
debtor. However, the arbitral award remained unsatisfied. The
appellant moved the High Court of Singapore which also
recognized the arbitral award and held the father liable for US
$12,951,078.03, a garnishee notice followed. The father
responded to the notice by denying the knowledge of the
execution proceeding and claiming residence in London. The
uncle filed an affidavit asserting that his brother i.e., the father
was not the sole beneficiary of Auro Mira Services Private Limited
i.e., the concerned company but both of them were the directors
and shareholders of the company. It was averred that corporate
separateness insulated him from the repercussions of the arbitral
award.
The father had executed a Will dated 16.09.1994 in favour of
4.
the uncle. The father expired on 08.03.2013. The appellant,
therefore, required the uncle, who was a substantial beneficiary
under the aforesaid Will executed by the father, to disclose the
3
details of assets of the father. The uncle refused to divulge the
details of the assets on the ground that the arbitral award dealt
with the properties in which he had personal stakes, and he was
not bound by the arbitral award dated 12.07.2010 passed in
favour of the appellant, as he is not the party to the same. The
uncle filed a Civil Suit, namely suit no. 470 of 2013 in the High
Court of Bombay, seeking a declaration that the arbitral award
dated 12.07.2010 is a nullity. The learned Single Judge by an
order dated 08.07.2013 directed the appellant to file an affidavit
in reply within a period of two weeks. The appellant thereupon
filed an affidavit in reply in the said civil suit, which is pending.
EXECUTION PROCEEDING IN BOMBAY: -
5. The appellant filed Execution Application (L) no.1036 of
2013 in the High Court seeking execution of arbitral award dated
12.07.2010. The appellant also filed a chamber summons no.243
of 2014, in the execution application seeking issuance of notice
under Order 21 Rule 22 of the Code of Civil Procedure (for short
“CPC”) and various reliefs inter alia for disclosure of assets,
issuance warrants of attachment, sale and arrest.
4
THE ORDERS: -
The learned Single Judge by an order dated 18.12.2014,
6.
held that execution must proceed and a notice under Order 21
Rule 22 of the CPC should issue. The learned Single Judge
further directed the respondents not to create any third-party
rights in respect of share, entitlement of the father in the
property situate in London. It was also directed that in case the
respondents create any third-party rights in respect of the
properties which belong to the father, the same shall be subject
to further orders of the Court.
7. The uncle filed a chamber summons (L) No. 1297 of 2013
raising various objections, to the execution of the arbitral award
and assailed the same on the ground that it is a nullity.
8. The learned Single Judge, by another order passed on
18.12.2014, on an application of uncle i.e. chamber summons (L)
no.1297 of 2013, inter alia , held that, the arbitral award which
has attained finality can neither be set aside under the Act nor
can the same be declared as nullity. It was further held that the
chamber summons taken out by the uncle is premature. It was
5
also held that execution shall proceed in accordance with law,
and the chamber summons was accordingly disposed of.
9. The respondents assailed the validity of the orders dated
18.12.2014 passed in chamber summons (L) no.1297 of 2013
and chamber summons no. 243 of 2014, in Letters Patent
Appeals, namely Appeal No.320 and 372 of 2015, before the
Division Bench of the High Court. The Division Bench by orders
dated 06.03.2018, admitted the appeals subject to
maintainability of the same, and thereafter, by separate orders
passed on the same day admitted the appeal and stayed the
orders dated 18.12.2014 passed by the learned Single Judge in
chamber summons (L) no.1297 of 2013 and chamber summons
no.243 of 2014. In these Civil Appeals, validity of orders dated
06.03.2018 passed by Division Bench of the High Court in
Appeal No(s). 320 and 372 of 2015, have been challenged.
SUBMISSIONS: -
10. Learned Senior Counsel for the Appellant, while inviting the
attention of this Court to Sections 5, 36, 37 and 50 of the Act,
submitted that, against the orders dated 18.12.2014 passed by
the learned Single Judge in the Chamber Summons, no Letters
6
Patent Appeals lie, as the Act is a complete code in itself. In
support of the aforesaid submissions, reliance has been placed
on decisions of this Court in Paramjeet Singh Patheja v. ICDS
1 2
Ltd. , Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. , Union
3
of India v. Simplex Infrastructures Ltd. , Kandla Export
4
Corporation and Anr. v. OCI Corporation and Anr. , Sundaram
5
Finance Ltd. v. Abdul Samad and Anr. , Amazon.Com NV
6
Investment Holdings LLC v. Future Retail Ltd. and Ors. , Noy
7
Vallesina Engineering Spa v. Jindal Drugs Limited & Others ,
v.
PASL Wind Solutions Private Limited GE Power Conversion
8
India Private Limited and Electrosteel Steel Limited v. Ispat
9
Carrier Private Limited , and decisions of the Bombay High
10
Court in Jet Airways (India) Ltd. v. Subrata Roy Sahara and
11
Sushila Singhania v. Bharat Hari Singhania .
11. It is further submitted that the Division Bench of the High
Court grossly erred in not assigning any reasons while admitting
1
(2006)13 SCC 322
2
(2011) 8 SCC 333
3
(2017) 14 SCC 225
4
(2018) 14 SCC 715
5
(2018) 3 SCC 622
6
(2022) 1 SCC 209
7
(2021) 1 SCC 382
8
(2021) 7 SCC 1
9
(2025) 7 SCC 773
10
2011 SCC OnLine Bom 1379
11
2017 SCC OnLine Bom 360
7
the appeals and for staying the operation of the orders dated
18.12.2014 passed by the learned Single Judge. It is also pointed
out that notice under Order 21 Rule 22 (1) of the CPC is yet to be
issued to the respondents. It is urged that the chamber summons
filed by the respondents in the execution proceedings, seeking a
declaration that the arbitral award dated 12.07.2010 is a nullity
is misconceived, and the chamber summons filed by respondents
was premature. It is also pointed out that the respondents have
already filed the Civil Suit seeking a declaration that the arbitral
award dated 12.07.2010 is a nullity. It is, therefore, prayed that
the impugned orders dated 06.03.2018 be quashed and set aside
and the learned Single Judge be directed to proceed with
execution expeditiously.
12. On the other hand, learned Senior Counsel for the
Respondents contended that the respondents are strangers to the
arbitration proceeding and the arbitral award dated 12.07.2010,
and they do not have locus to challenge the same under the Act,
as the Act envisages the challenge to the arbitral award in the
manner indicated, therein by a party. It is, therefore, contended
that the Letters Patent Appeals filed by the respondents are
8
maintainable. It is also pointed out that, while deciding the
chamber summons, the learned Single Judge has held that the
arbitral award (i) is not without jurisdiction, (ii) not accentuated
by fraud, (iii) not barred by limitation and (iv) is not against the
public policy. It is further contended that the learned Single
Judge ought to have appreciated that the arbitral award deals
with properties of which the respondents are either the owners or
have substantial interest. It is, therefore, urged that appeals are
liable to be dismissed.
ANALYSIS: -
13. We have considered the rival submissions and have perused
the record. Before proceeding further, it is apposite to take note of
the relevant statutory provision, namely Order 21 Rule 22, which
is extracted below for the facility of reference.
“22. Notice to show cause against
execution in certain cases.—
(1) Where an application for execution is
made—
(a) more than [two years] after the
date of the decree, or
(b) against the legal representative of
a party to the decree [or where an
application is made for execution of
9
a decree filed under the provisions of
section 44A], [or]
(c) against the assignee or receiver in
insolvency, where the party to the
decree has been adjudged to be an
insolvent,
the Court executing the decree shall
issue a notice to the person against
whom execution is applied for requiring
him to show cause, on a date to be fixed,
why the decree should not be executed
against him:
Provided that no such notice shall be
necessary in consequence of more than
[two years] having elapsed between the
date of the decree and the application for
execution if the application is made
within [two years] from the date of the
last order against the party against
whom execution is applied for, made on
any previous application for execution,
or in consequence of the application
being made against the legal
representative of the judgment-debtor if
upon a previous application for
execution against the same person the
Court has ordered execution to issue
against him.
(2) Nothing in the foregoing sub-rule
shall be deemed to preclude the Court
from issuing any process in execution of
a decree without issuing the notice
thereby prescribed, if, for reasons to be
recorded, it considers that the issue of
such notice would cause unreasonable
delay or would defeat the ends of justice.
10
14. Thus Order 21 Rule 22 mandates that where execution is
sought (a) more than two years after the decree or (b) against the
legal representative of judgment debtor or (c) against the assignee
or receiver in insolvency, where party to the decree has been
adjudged to be an insolvent, the executing court shall issue
notice to the person against whom execution is sought, requiring
him to show cause, why the decree should not be executed.
15. The use of word ‘shall’ in Order 21 Rule 22 (1) admits of no
ambiguity and the executing court is under an obligation to issue
notice to the person against whom a decree is sought to be
executed in the circumstances enumerated therein. The mandate
of Order 21 Rule 22 (1) stands on two independent and mutually
reinforcing foundations (i) the statutory compulsion-the use of
word ‘shall’ in the provision leaves no discretion to the executing
court in the circumstances enumerated therein, (ii) it
incorporates the principles of natural justice as the legal
representative of the deceased cannot be proceeded unless he is
given an opportunity to contest the execution. Thus, the
requirement of notice under Order 21 Rule 22 (1) to the persons
enumerated therein is not a mere procedural courtesy but is the
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very foundation of the jurisdiction when the execution is sought
against the estate of the deceased judgment debtor. The
foundation of this requirement was laid down by the Privy
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Council in Raghunath Das v. Sundardas Khetri , wherein it
was held that notice under Section 248 of the Old Code,
(equivalent to Order 21 Rule 22) is a condition precedent to
jurisdiction of the Court to proceed with execution against the
legal representative of a deceased judgment debtor.
16. Now, we may advert to Order 21 Rule 23 of the CPC which
reads as under:
23. Procedure after issue of notice . —
(1) Where the person to whom notice is
issued under [rule 22] does not appear
or does not show cause to the
satisfaction of the Court why the decree
should not be executed, the Court shall
order the decree to be executed.
(2) Where such person offers any
objection to the execution of the decree,
the Court shall consider such objection
and make such order as it thinks fit.
17. The aforesaid rule prescribes the procedure after issue of
notice. Order 21 Rule 23 (1) provides that where a person to
whom notice is issued under Rule 22 does not appear or does not
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AIR 1914 PC 129
12
show cause to the satisfaction of the Court why the decree should
not be executed, the Court shall order the decree to be executed.
Order 21 Rule 23 (2) provides that where any person offers any
objection to the execution of the decree the court shall consider
such objection and shall make such order as it thinks fit.
APPLICATION OF AFORESAID PROVISIONS TO THE PRESENT
CASE: -
18. In the backdrop of relevant statutory provisions, we may
advert to the facts of the cases in hand. Admittedly, the father of
the appellant had executed a Will on 16.09.1994 in favour of his
brother. From perusal of the cause title of the execution
proceeding, it is axiomatic that the uncle was arrayed in
execution proceedings as legal representative/executor of the Will
dated 16.09.1994 of the father and not in his individual capacity.
The respondents, therefore, cannot be treated as third party to
the arbitral award.
19. The Act is a self-contained code and is founded upon
principles of party autonomy, expedition and finality. The
legislative design of the Act restricts judicial interference. The
orders of the learned Single Judge dated 18.12.2014, were passed
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in course of execution of arbitral award and are, therefore,
traceable to the Act and not to CPC. The execution of the arbitral
award is sought against the respondents in their capacity as
executors of the aforesaid Will. The respondents step into the
shoes of judgment debtor of the limited purpose of the execution.
The Letters Patent Appeals filed by respondents were therefore
not maintainable. The Division Bench of the High Court erred in
admitting the appeals subject to maintainability of the same and
in admitting the appeals without assigning any reasons.
20. A careful scrutiny of the order dated 18.12.2014 passed in
chamber summons no.243 of 2014, reveals that the learned
Single Judge has held that the issue with regard to attachment of
properties shall be dealt with at an appropriate time, upon an
application made in accordance with law. It has further been held
that a notice under Order 21 Rule 22 (1) of the CPC to proceed in
execution of the arbitral award is granted.
21 . Thus, it is axiomatic that the notice under Order 21 Rule
22 (1) of the CPC is yet to be issued to the respondents. Once a
notice is issued to the respondents, it is open for them to raise an
objection to the execution of the arbitral award under Order 21
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Rule 23(2) of the CPC. However, we find that the learned Single
Judge while deciding the chamber summons (L) No.1297 of 2013,
has made observations/findings though not determinative, have
the potential to prejudice the respondents in their objections
under Order 21 Rule 23 (2) of the CPC, which they are statutorily
entitled to raise on receipt of notice. The respondents, therefore,
must be placed in the position, the law intended them to occupy
i.e. the legal representatives are entitled to be heard before their
estate is saddled with execution.
CONCLUSION: -
22. In view of foregoing discussion, impugned orders dated
06.03.2018 passed by the Division Bench of the High Court of
Bombay in Letters Patent Appeals, namely Appeals No.320 and
372 of 2015 are quashed and set aside. The aforesaid Letters
Patent Appeals are dismissed as not maintainable. In order to
restore the execution proceeding to the track mandated by the
CPC, as well as in the facts and circumstances of the case, we
deem it appropriate to issue following directions: -
(i) The learned Single Judge in Execution Application (L) No.
1036 of 2013, shall issue notice to respondents under Order 21
Rule 22 (1) of the CPC.
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(ii) On receipt of such notice, it would be open for the
respondents to prefer objections to the execution proceedings
under Order 21 Rule 23 (2) of the CPC.
(iii) The objections which may be preferred by the respondents
shall be dealt with, on its own merit, by the learned Single Judge
without being influenced by any of the observations/findings
contained in the orders dated 18.12.2014 passed in chamber
summons no(s). 243 of 2014 and 1297 of 2013 in Execution
Application (L) No.1036 of 2013.
23. The appeals are accordingly disposed of on above terms.
……………….……………J.
[SANJAY KUMAR]
..…….…………………….J.
[ALOK ARADHE]
NEW DELHI;
NOVEMBER 20, 2025.
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