ORDER :- In this matter which has come up for directions before me, the judgment-creditors put in issue the practice adopted by the Insolvency Registrar with regard to issuance of insolvency notice founded on a decree which is more than two years old. The Insolvency Registrar insisted that before an insolvency notice could be issued, in respect of a judgment-debt under a decree which was more than two years old and thus required compliance with the provisions of O.21, R.22 of the Code of Civil Procedure proceeding in that behalf must be adopted and the said notice made absolute by the competent court. This practice has been prevalent in this court for last several years. This practice is assailed on the ground that it is contrary to the provisions of law or is otherwise unreasonable. 2. On 1st August 1974 a decree was passed in favour of the judgment-creditors by the City Civil Court, Bombay, in Summary Suit No.3778 of 1974 against M/s. Premier Machine Tools Co., the Judgment-debtors. On 26th April 1976 the judgment-creditors made an application to the Insolvency Registrar for issuing an insolvency notice contemplated by S.9-A of the Presidency Towns Insolvency Act (hereinafter referred to as "the Act"). The said application was processed by the office of the Insolvency Registrar. The draft of the notice which was submitted by the attorneys of the judgment-creditors was approved by the office of the insolvency Registrar and sent back to the attorney. The said insolvency notice was then duly engrossed and submitted again to the office of the Insolvency Registrar for being sealed. The time which was taken in this process rendered the decree passed on 1st August 1974 more than 2 years old and thus required leave of the court for execution under O.21 R.22 of the Code of Civil Procedure. Upon the said query being raised or the requisition being made in that behalf by the office of the Insolvency Registrar, the attorneys for the Judgment-creditors by their precipe dated 16th August 1976 raised objections that the said query or the requisition was unjustified. By the said precipe the attorneys required the Insolvency Registrar to place the matter before me for directions. The said precipe along with a comprehensive and a well-considered note prepared by the Insolvency Registrar, was submitted to me. By the said precipe the attorneys required the Insolvency Registrar to place the matter before me for directions. The said precipe along with a comprehensive and a well-considered note prepared by the Insolvency Registrar, was submitted to me. I directed that the matter be placed on Board for determination of the issues involved therein. 3. In the precipe of the attorneys of the judgment-creditors it is contended that the Insolvency proceedings are not execution proceedings; that the only requirements which have to be fulfilled before an insolvency notice could be issued are those postulated by the relevant provisions of the Presidency Towns Insolvency Act (hereinafter referred as "the Act'") and the rules of this court relating thereto, viz., debt not being barred and the execution of the decree not being stayed; that the purpose of O.21, R.22 of the Code of Civil Procedure was merely to prevent a surprise being sprung upon a judgment-debtor and further the judgment-debtor has an opportunity to show cause against an insolvency notice and to have it set aside on the ground available to him under the provisions of the said Act and the said Rules. In light of these assertions the contention of the judgment-creditors in the said precipe is that the practice adopted by the Insolvery Registrar is not only without sanction of law but is contrary thereto. 4. Shri Makhija appears for the judgment-creditors. The Insolvency Registrar though present in court, is not represented by any counsel. I must observe that the matter being ex parte as if it were, the learned counsel in the best traditions of the bar approached the problem in a very fair and reasonable manner and rendered even handed assistance to this court. According to the learned counsel there are several reasons, for holding that the position adopted by the Insolvency Registrar or the long standing practice of this court adverted to by him is plainly erroneous and requires judicial interdict. 5. The submission of the learned counsel is twofold. The first submission is that upon a true construction of the provisions of S.9(i) and S.9-A of the Act, the only fetters with regard to acts of insolvency based upon an insolvency notice are, (i) 'execution of a decree not having been stayed' (ii) 'the debtor having a counter-claim which equals or is in excess of the judgment-debt' and (iii) the quantum of the debt being disputed. These fetters which are explicit on the language of the said provisions, according to the learned counsel, also constitute restrictions in the matter of issuance of insolvency notice. These restrictions or fetters do not take within their sweep absence of leave under O.21 R.22 of the Code of Civil Procedure. The learned counsel argues that the absence of leave under O.21 R.22 is no impediment in the way of a judgment-creditor to have an insolvency notice issued for enforcement of his right arising from the 2 years old decree. The other submission is that the issuance of insolvency notice is not an execution of a decree because an insolvency proceeding founded on a decree is not a mode of execution postulated by the provisions of the Code of Civil Procedure. The provisions of the Civil Procedure Code merely deal with the specific modes of execution enumerated in O.21 R.11 sub-sec.(2). Thus, absence of leave under O.21 R.22 does not impinge upon or otherwise control the provisions of the Act and rules relevant to the insolvency notices issued under provisions thereof or the proceedings subsequent thereto. 6. The first question turns on the interpretation of the provisions of S.9(i) read with S.9-A of the Act. The said provisions are well known and need not be reproduced here. Suffice it to notice that S.9(i) by its material provision inter alia provides that if a creditor has served an insolvency notice upon a debtor in respect of a decree or an order for the payment of any amount due to such creditor, execution of which is not stayed and default is made by the judgment-debtor in complying therewith, such a default constitutes an act of insolvency. Sub-s.(i) of S.9 read with the proviso thereto contemplates two limitations: (a) decree the operation whereof is stayed cannot sustain an insolvency notice and (b) a debtor is immunised from non-compliance if the debtor has a counter-claim or set off which equals or exceeds the decretal amount' and which counter-claim or set off the debtor 'could not lawfully set up in the suit or proceedings in which a decree or order was made against him.' S.9-A envisages a third limitation. It inter alia provides by sub-s.(2) thereof that an insolvency notice can be invalidated on ground that the debtor had given a notice to the creditor within the period prescribed by the insolvency notice to the effect that he disputed the validity of the notice on the ground of misstatement as to the actual amount due. There is no doubt that the aforesaid are the only fetters postulated by the Act in regard to act of insolvency or to the process leading to a finding that a debtor has committed an act of insolvency so as to give jurisdiction to the court to make an order upon the basis thereof. These limitations or fetters in my opinion, however do not detract from the two basic concepts that are to be found in the provisions of S.9(i) of the Act. The said concepts are 'a creditor', and 'the decree or an order'. The term "creditor" is defined by S.2(a) of the Act as including a decree-holder. Conceptually, a decree-holder is a person who not only has a decree in his favour but is in a position to enforce such a decree. A decree-holder must of necessity be a person who is able to enforce a decree or an order. Absence of any such right to the decree-holder merely gives him a husk without a kernel. Law abhors such empty rights. There cannot be a decree without its enforceability. If there is a valid decree it must have the attribute of enforce ability. It therefore follows that a judgment debt to sustain an insolvency notice must arise out of an enforceable decree and not out of decree which otherwise is unenforceable. A decree which is more than two years old, is by its own force (proprio vigore) unexecutable. The judgment-debt arising out of such a decree is equally unenforceable unless leave as required by O.21 R.22 is first obtained in that behalf. 7. It may also be seen that S.9(i) of the Act is modelled on the provisions of S.1 sub-sec.(1) cl.(g) of the English Bankruptcy Act, 1914, Sub-sec.(i) of S.9 of the Act corresponds to proviso (i) to the said section of the English Act. The said section has been interpreted by the English courts as designating "any person who is for the time being entitled to enforce a final judgment or final order'. (see Williams on Bankruptcy, 18th Edn. p.36). The said section has been interpreted by the English courts as designating "any person who is for the time being entitled to enforce a final judgment or final order'. (see Williams on Bankruptcy, 18th Edn. p.36). There is no reason why S.9(i) of the Act should also not receive the same construction. Similar result follows from the interpretation of the other concept, viz., execution not having been stayed. By a catena of cases in England it is fairly established that the execution of a decree or order would be deemed to be stayed if the judgment-creditor is oat in a position to or is not entitled to sue immediate execution. All the English cases need not be cited; it is enough, to notice the rule laid down by the Court of Appeal In re A debtor Ex Parte the Debtor: (1908) 1 KB 344. It was a case where the judgment-creditor a Solicitor, brought an action against the debtor for the bill of costs in which a compromise judgment was signed by the court. The judgment-debtor paid some amount in part satisfaction of the judgment-debt and for the balance a bankruptcy notice was served. Subsequent thereto the debtor accepted the bill at one month for the amount of the balance of the debt as also the costs of the bankruptcy notice drawn by the creditor. Acceptance of the bill was consequent upon a letter written by the judgment-creditor to the judgment-debtor. The said letter provided for extension of time for the judgment-debtor to pay the amount owing by him. The bill was endorsed by the Solicitor in favour of his Bank. The bill was on presentment dishonoured. A further bankruptcy notice followed and was served upon judgment-debtor. On these facts it was argued on behalf of the judgment-debtor that having regard to the facts that the bill was outstanding and in the hands of the bank and that the bill operated as an agreement, the judgment-creditor was not entitled to any remedy upon the judgment. A further bankruptcy notice followed and was served upon judgment-debtor. On these facts it was argued on behalf of the judgment-debtor that having regard to the facts that the bill was outstanding and in the hands of the bank and that the bill operated as an agreement, the judgment-creditor was not entitled to any remedy upon the judgment. In this framework of facts Cozens Hardy M.R. inter alia held at page 349 as follows:- "It cannot possibly be right that the creditor should be allowed to present a bankruptcy notice, and found upon it a petition in bankruptcy, when he has by taking this bill, agreed that he will not enforce his rights, and agreed that he will suspend his remedies not only during the currency of the bill, but afterwards while the bill is in the bands of a third party". 8. Flether Moulton P.J., in his concurring judgment was more explicit. At the same page the learned Judge observed as follows:- "The extremely able argument of Mr. Hogg raised all the points that could be raised on behalf of the respondent in this case and did so in a way which has much assisted me in common with the other members of the Court. He relies on the bare language of S.4, sub-s.(1)(g) of the Bankruptcy Act, and says that this bankruptcy notice was good because the creditor had obtained final Judgment, and execution had not been stayed upon it. There might have been a question as to whether those words are to be taken in their strictest literal sense i.e. whether they refer solely to a formal stay by order made in chambers or in court suspending the right to enforce execution. But Mr. Hogg very properly felt that he could not press it so far as that. He admitted that by taking the bill in the present case his client had suspended during the currency of the bill the right to issue execution, and that this operated to prevent his serving a bankruptcy notice by reason of its bringing him within the words "execution having been stayed", although no formal stay had been ordered by chambers. He admitted that by taking the bill in the present case his client had suspended during the currency of the bill the right to issue execution, and that this operated to prevent his serving a bankruptcy notice by reason of its bringing him within the words "execution having been stayed", although no formal stay had been ordered by chambers. In other words, where there are circumstances under which the court would, if applied to, prevent the issue of execution, those circumstances may bring the case within the interpretation which the court has put upon the words "execution having been stayed"." 9. The learned Judge did not rest his decision on the admissions made by the learned counsel. He in terms held that the judgment-creditors must show that they 'were in a position to receive at the date when' they "served the bankruptcy notice" (p. 351). Tile test not being satisfied, the claim of judgment-creditor was negatived. Halsbury's Laws of England, Fourth Edn. Vol. 3, in paragraph 262 sums up the position as follows:- ''Generally speaking, a stay of execution prevents the issue of a bankruptcy notice. For the purpose execution is considered to be stayed if, at the date of the notice, the judgment creditor is not entitled to issue immediate execution on the judgment". 10. It may be observed that the aforesaid exposition of law by Halsbury is based on the ratio of the decision In re a Debtor, Ex Parte the Debtor (1908) 1 KB 344 (supra). 11. On legal parameters noticed above can it be predicated for the judgment-creditor before me that they have a right to immediate execution of the decree dated 1st August 1974. Upon the plain language of O.21, R.22, the question, must he answered against the judgment-creditors. The said rule enjoins upon a court to issue a notice where an application for execution is made in respect of a decree which is more than 2 years old (period of 2 years in so far as Bombay is concerned). It is only when the court has issued such a notice and has heard the objection of the judgment-debtor and has made a finding, express or implied, that no cause had been shown for an execution of a decree that the court can pass an order directing the execution of the decree. It is only when the court has issued such a notice and has heard the objection of the judgment-debtor and has made a finding, express or implied, that no cause had been shown for an execution of a decree that the court can pass an order directing the execution of the decree. In absence of such leave it is not controverted before we that no execution of a decree or order under O.21 R.22 of the Code of Civil Procedure is permissible to a judgment-creditor. 12. The second submission of the learned counsel is ingenious and attractive. There seems to be justification in the contention that an insolvency proceeding is not an execution proceeding for the purpose of and within the meaning of relevant provisions of the Code of Civil Procedure. Equally justified is the submission that modes of execution under the Code of Civil Procedure are those that are to be found in Cl.(j) of sub-rule (2) of R.11 of O.21. They do not take within their sweep the so-called mode of execution by insolvency proceedings. This, however, is not the whole truth. It is a well-settled principle of law that insolvency ultimately is an equitable mode of enforcement of a creditor's right. I need not however, express any opinion on this larger question. For the purpose of the present proceedings it is enough to investigate as to whether an insolvency proceeding based upon the enforcement of a judgment-debt is or is not a form of execution. In my opinion, there is intrinsic evidence in the provisions of S.9(i) read with S.9-A of the Act to warrant an inference that the insolvency proceedings contemplated by the said provisions are in the nature of equitable mode of execution of a decree in favour of the judgment-creditor. The said provisions create a statutory ground for an act of insolvency. S.9(i) in terms provides that if a notice of the description mentioned in S.9-A is not complied with, such a non-compliance amounts to an act of insolvency upon which not only the Judgment-creditor in question but even the other creditors can found a petition for adjudication. This is the mode of execution of judgment-debt arising out of a decree or an order. This is the mode of execution of judgment-debt arising out of a decree or an order. This enforcement, it is true, is not a right exclusive to a decree-holder but a right which the decree-holder shares with other creditors in so far as an act of insolvency is concerned. But this does not detract from the basic purpose of an insolvency proceeding which is for realisation of assets including the debts of the decree-holder by the court seizing property of the judgment-debtor and providing for the rateable distribution of the proceeds of such assets amongst insolvents' creditors. If it is not an execution what else can it be said to be? It is undoubtedly true that under the provisions of the Act a discretion has to be exercised by the court but that does not nullify the nature of the insolvency proceedings pertaining to the enforcement of a judgment-debt. It merely renders such proceedings an equitable mode of execution. 13. In view of the legal provision discussed above viz., that issuance of insolvency notice is an equitable mode of execution of a decree or order, the only question which is required to be decided is as to the effect of non compliance with the provisions of O.21, R.22 of the Code of Civil Procedure. The decree is dated 1st August 1974. It obviously was more than two years old on the date when the insolvency notice was sought to be issued. There is no running away from the inference which is implicit in the scheme of O.21 Rr.22 and 23 of the Code of Civil Procedure that in absence of leave to execute the decree, the execution could not be levied in pursuance thereof. Reliance by the learned counsel upon a judgment of this court in Vallabhadas Narandas v. Kantilal G. Parekh; AIR 1947 Bom 430, is unhelpful. Indisputably this court held therein that the purposes of the provisions of O.21 R.22 is to prevent a surprise being sprung upon a judgment-debtor. That however is not relevant to the controversy before me. On the material question which arises before me, the decision dues not shed any light. It does not deal with a situation where there was no compliance with the provisions of O.21, R.22. That however is not relevant to the controversy before me. On the material question which arises before me, the decision dues not shed any light. It does not deal with a situation where there was no compliance with the provisions of O.21, R.22. It was a case where at the stage when the court heard objections pursuant to a notice issued under O.21, R.22 of the Code of Civil Procedure, the court was called upon to decide the question of maintain ability of the application of the decree-holder. Kania J. dealt with the facts of the case to determine the issue whether the said application on behalf of the judgment-creditor was not maintainable. In my opinion, the principle laid down in the said decision is not attracted in the present case. 14. As to the effect of non-compliance with the provisions of O.21 R.22 the ratio of the decision of this court in Parshram Hanmanta Patil v. Balirmkund Lachiram; (1908) ILR 32 Bom 572 is apposite. In that case a Division Bench of this court while dealing with the corresponding provisions of the Code of Civil Procedure, 1882 invalidated the sale on the ground that the notice was not issued to the judgment-debtor. Implicit in the said decision of this court is a legal principle that absence of notice vitiates all subsequent proceedings. 15. The Privy Council in Raghunath Das v. Sundar Das Khetri, 41 Ind App 251 : (AIR 1914 PC 129), characterised the execution proceedings without compliance with the corresponding provisions of Civil Procedure Code, 1892, as lacking in jurisdiction. At page 257 after referring to an earlier decision of the some court in Gopai Chunder Chatterjee v. Gunamoni Dasi; (1893) ILR 20 Cal 370, the Privy Council observed at p. 257 as follows:- "A notice tinder S.248 of the Code is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor. In the case of 27 Indian Appeals, such a notice had been served, and the court had determined, as it had power to do for the purpose of the execution proceedings, that the party served with the notice was in tact the legal representative. It had therefore jurisdiction to sell, though the decision as to who was the legal representative was erroneous. It had therefore jurisdiction to sell, though the decision as to who was the legal representative was erroneous. There being jurisdiction to sell and the purchasers having no notice of any irregularity, the sale held good unless or until it was set aside by appropriate proceedings for the purpose. The present case is of a wholly different character. No proper notice was served under the section, and the respondents had full notice of, and indeed were responsible for, the irregularities of the procedure adopted". 16. In the light of the principle laid down by the Privy Council, the Privy Council upheld the contention of the judgment-debtor as to the invalidity of the sale for want of leave of the court for execution against legal representative. The same principle must also apply to a case where the leave of the court it necessary in regard to a decree which is more than two years old because in principle there can be no distinction between the two situations in so far as the requirement of the leave of the court is concerned. I therefore, must hold that in absence of leave under O.21, Rr.22 and 23 of the Code of Civil Procedure, it is not open to the judgment-creditors herein to execute the said decree. The execution of the said decree is not permissible under the provisions of the Code of Civil Procedure. It must also be held that the judgment-creditors herein are not entitled to resort to any equitable mode of execution thereof. This is further buttressed by the principle that if it is not premissible for the judgment-creditors to execute the decree under the provisions of the Code of Civil Procedure directly, this court in exercise of its discretion will not allow the judgment-creditors to execute the said decree indirectly by circuitous method of insolvency proceedings. 17. Reliance by the learned counsel on an unreported judgment of this court in Daljit Kishan v. Nihalchand Jethaji, decided by Mukhi, J. on 19th July 1973 (Bom), is misplaced. The ratio of the said decision is plainly distinguishable. The factual horizons of the said case and those obtaining in the present case are altogether different. It was a case where an insolvency notice was taken out at point of time when no leave under O.21, R.22 was necessary. The ratio of the said decision is plainly distinguishable. The factual horizons of the said case and those obtaining in the present case are altogether different. It was a case where an insolvency notice was taken out at point of time when no leave under O.21, R.22 was necessary. The insolvency notice however, was served after the expiry of the period of two years contemplated for execution of decrees under O.21 R.22 of the Code of Civil Procedure. It was in the context of this fact that the learned Judge dealt with the argument of the judgment-debtor. The learned Judge, no doubt, took the view that he was "unable to agree that resort to the procedure under insolvency Act can be equated with the execution of a decree". The further view taken by the learned Judge was that even though no leave under O.21, R.22 was obtained, the decree existed and was not stayed. The latter observation however, was made by the learned Judge upon a concession made at the bar to the effect that there was no stay of the execution of the decree. This is very clear fro in the concession recorded by the learned Judge in the following words:- "Now there is no controversy before me that the execution of the decree in question had not been stayed". 18. In my respectful opinion, the aforesaid two observations of the learned Judge, with great respect to him, are enunciations per incuriam. The learned Judge with great respect to him, completely overlooked the statutory provisions contained in S.9(i) of the Act, more particularly the interpretation accorded to the terms "creditor" and "execution whereof is not stayed". That apart, it is in so far as this court is concerned, a settled law that in order to sustain an insolvency proceeding it must be shown by the judgment-creditor that he is in a position to enforce the decree or order given in his favour. This is what the Division Bench of this court in J.P. Tiwari v. Bhimraj Harlalka; (195S) 60 Bom LR 923 firmly laid down. This is what the Division Bench of this court in J.P. Tiwari v. Bhimraj Harlalka; (195S) 60 Bom LR 923 firmly laid down. It was a case where in regard to the grounds available fur challenging an insolvency notice, it was held by the Division Bench of this Court at p.969 as follows:- "It is well settled that if there is any impediment in the way of a judgment-creditor executing the decree or if the decree is not presently executable, no insolvency notice can be founded on such a decree. It is not necessary that execution of the decree should be stayed formally by the executing court. Even without any such formal order of stay, if the judgment-creditor is not in a position to satisfy the insolvency court that he has a right to execute the decree in praesenti the insolvency notice taken out by the judgment-creditor must fail". (emphasis supplied). 19. This binding authority of the Division Bench of this court was however, not brought to the notice of the learned Judge in Daljit Kishan's case (supra). I have no doubt in my mind that had this authority been brought to the notice of the learned Judge, the observations which fell from him might not have been made. In any event, with respect, I am bound by the ratio of the Division Bench of this Court in J.P. Tiwari's case (1958) 60 Bom LR 923 and must hold that the principle of law laid down by Mukhi, J. in Daljit Kishan's case is not the correct statement of law. I respectfully dissent from the aforesaid exposition of law. 20. It may also be observed that the principle enunciated by Chagla, C.J. in J.P. Tiwari's case (1958) 60 Bom LR 923 was followed by another Division Bench of this court to which Mukhi, J. was also a party. In Ali D. Gandhi v. S.L. Thakurdas, (1975) 77 Bom LR 119, the Division Bench of this court took the view that an insolvency notice can be invalidated upon the Grounds inter alia that the subsequent events had rendered the enforceability of the decree at the hands of a judgment-creditor, untenable. The Division Bench in the said case laid down that it the supervening circumstances "rendered the decree unexecutable" (page 127) it was open to a judgment-debtor to successfully impugne the insolvency notice upon the said ground. The Division Bench in the said case laid down that it the supervening circumstances "rendered the decree unexecutable" (page 127) it was open to a judgment-debtor to successfully impugne the insolvency notice upon the said ground. Having regard to the ratio of the judgment of the Division Bench in Ali D. Gandhi's case (supra) to which Mukhi, J. himself was a party, it must be held that the exposition of law in Daljit Kishan's case is impliedly overruled by the said Division Bench. 21. In the result, I find sufficient authority in law to uphold the practice of the Insolvency Registrar to insist upon order of the competent court under O.21, R.23 of the Code of Civil Procedure, in cases where decrees come under the coverage of the O.21 R.22 of the Code of Civil Procedure. The submissions of the judgment-creditors to the contrary are rejected and the action and the view of the Insolvency Resistor affirmed. Ordered accordingly.