JUDGMENT Indrajit Mahanty; CJ. - This review petition is filed by one Kalpataru Properties Pvt. Ltd. seeking, inter alia, directions for 'review of the observations & conclusions as contained in the Judgement and Order dated 14.03.2022 (Annexure-18 supra), more particularly, those observations & conclusions as contained in Paragraphs 8 to 15 thereof, passed in Writ Petition(C)(PIL) No.4 of 2022 (Sri Shubhankar Bhowmik Versus Union of India & Others)....' 2. At the outset, it has been fairly pointed out by the Learned Counsel for the Review Petitioner that the Review Petitioner was not a party to the original PIL proceedings. However, it is stated that the observations contained in the paragraphs 8 to 15 of the judgement dated 14.03.2022 passed in the Writ Petition(C)(PIL) No.4 of 2022 ('Impugned Judgement'), prejudicially and adversely affect the Review Petitioner in an on-going highly contested litigation in which it is a party. 3. Before going into the contentions of the parties, the facts may be noted in brief : 3.1 WP(C)(PIL) No.4 of 2022 was filed by the petitioner therein, with, inter alia, the following prayers: '1. Issue an appropriate Writ, Order or Direction more particularly in the nature of WRIT OF CERTIORARI or any other appropriate writ declaring the provisions of Section 3(10) of the Insolvency and Bankruptcy Code, 2016 read with Regulations 9A as ultra vires inasmuch as it fails to define the terms 'other creditors' and accordingly, to strike them down on the vice of Article 14 of the Constitution of India, or the impugned provisions may be interpreted harmoniously to include the words 'decree holder' as existing in Section 3(10) to be at par with 'financial creditors' under Regulation 9(a), to save them from unconstitutionality; 2. Issue an appropriate Writ, Order or Direction more particularly in the nature of WRIT OF CERTIORARI or any other appropriate writ declaring that claims filed under a CIRP by 'decree holder' under Regulation 9(a) of the CIRP Regulations, be considered at par with claims filed by 'financial creditors' and be amenable to all consequential rights available to financial creditors; and/or.....' 3.2 When the PIL was heard, the PIL Petitioner had argued that he is a shareholder of public listed companies, who are either creditors and/or corporate debtors in terms Insolvency and Bankruptcy Code, 2016 ('IBC') and he was therefore interested in the petition to that extent. It was further his contention that the issues raised had a wide ranging effect as they would be germane to almost all corporate insolvency resolutions under the IBC. Principally, the issues raised in the PIL dealt with the treatment of 'decree holders' who hold decrees against a Corporate Debtor under the insolvency resolution process. To sum it up the contention was that though the IBC includes 'decree holders' in the definition of 'creditors', it does not prescribe the class of creditors to which the term 'decree holder' belongs, and therefore there exists a need to iron out the creases by this Hon'ble Court. It was argued that without such prescription in the IBC, the class of 'decree holders' falls into the residual class of 'other creditors', which it is stated manifestly arbitrary and therefore violates Article 14. 3.3 In the aforesaid context, we thought it fit to first examine the provisions of law being referred to by the counsel for the PIL Petitioner to see whether even a prima facie case for entertaining the PIL was made out. We therefore heard the counsel for the PIL Petitioner at length before passing the Impugned Order. 3.4 After considering the Statement of Objects and Reasons of the IBC and the relevant authorities, we examined the relevant provisions of the IBC in paragraphs 8 to 15 of the Impugned Judgement. Since the grievance of the Review Petitioner is with these paragraphs of the judgement, the same are reproduced herein below : '8. In the aforesaid background, we proceed to examine the provisions of the IBC. The word 'creditor' is defined in Section 3(10) of the IBC which reads as under: '3(10) 'creditor' means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder;' 9. A reading of the aforesaid section suggests that the Parliament in its wisdom recognized five types of creditors being 'financial creditor' or 'operational creditor', 'secured creditor', 'unsecured creditor' and a 'decree holder'. A further examination of the provisions reveals that the phrases 'financial creditor', 'operational creditor' and 'secured creditor' are defined in sections 5(7), 5(20), and 3(30) respectively. It would also be trite to note that a creditor who does not qualify as a 'secured creditor' under Section 3(30), would by necessary implication mean an 'unsecured creditor'. A further examination of the provisions reveals that the phrases 'financial creditor', 'operational creditor' and 'secured creditor' are defined in sections 5(7), 5(20), and 3(30) respectively. It would also be trite to note that a creditor who does not qualify as a 'secured creditor' under Section 3(30), would by necessary implication mean an 'unsecured creditor'. However, the definitions contained in the IBC do not provide any definition for a 'decree holder'. 10. At first blush, it seems that the aforesaid, as submitted by the counsel for the petitioner, is an inadvertent omission. However, a closer scrutiny of the provisions of the IBC reveals otherwise. 11. Before proceeding to the same, however, it would be trite to understand the rights of a decree holder per se, i.e. dehors the contours of IBC. The right of a decree holder, in the context of a decree, is at best a right to execute the decree in accordance with law. Even in a case where the decree passed in a suit is subject to the appellate process and attains finality, the only recourse available to the decree-holder is to execute the decree in accordance with the relevant provisions of the Civil Procedure Code, 1908. Suffice it to say, that the provisions contained in Order 21 provides for the manner of execution of decrees in various situations. The said provisions also provide for the rights available to judgment debtors, claimant objectors, third parties etc., to ensure that all stake holders are protected. The provisions of the CPC, therefore subjects the rights of a decree-holder to checks and balances that an executing court must follow before the fruits of such decree can be exercised. Given the same, the rights of a decree-holder, subject to execution in accordance with law, remain inchoate in the context of the IBC. This is principally because, the IBC, by express mandate of the moratorium envisaged by Section 14(1), puts a fetter on the execution of the decree itself. 12. Section 14 provides as under: '14. Given the same, the rights of a decree-holder, subject to execution in accordance with law, remain inchoate in the context of the IBC. This is principally because, the IBC, by express mandate of the moratorium envisaged by Section 14(1), puts a fetter on the execution of the decree itself. 12. Section 14 provides as under: '14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.' 13. Therefore, in terms of Section 14(1)(a), the right of the decree-holder to execute the decree in civil law, freezes by virtue of the mandatory and judicially recognized moratorium that commences on the insolvency commencement date. This is because a decree, in a given case may be amenable to challenge by way of an appellate process, and/or by way of objections in the execution process. In that sense, the passing of the decree may be the recognition of a claim of the decree holder, however, the said claim itself is ultimately subject to doubt till the execution proceedings are finalized. For instance, a judgment & decree in a civil suit, may be upheld throughout the appellate chain right up to the Hon'ble Apex Court. However, even that would not automatically entitle the decree holder to the fruits of the decree. The same would still remain, subject to objections in execution proceedings which if allowed, would frustrate the decree. For instance, a judgment & decree in a civil suit, may be upheld throughout the appellate chain right up to the Hon'ble Apex Court. However, even that would not automatically entitle the decree holder to the fruits of the decree. The same would still remain, subject to objections in execution proceedings which if allowed, would frustrate the decree. Therefore, whereas the IBC rightly recognizes decree-holders as a class of creditors whose claims need to be acknowledged in a corporate insolvency resolution process, the IBC by express provision of Section 14(1)(a) bars execution of a decree by the same decree holder against the corporate debtor. 14. The aforesaid conclusion also finds force in a conjoint reading of the Section 14(1)(b) and Section 28 of the IBC. Section 14(1)(b) provides, inter alia, that the NCLT, on the insolvency commencement date shall declare a moratorium on 'transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;' In the context of an unexecuted decree, the subject matter of the decree, be it money, moveable property, immoveable property, or of any other nature, remains on the books of the corporate debtor. The moratorium envisaged by Section 14(1)(b) therefore, expressly bars transfer, encumbering, alienation or disposal of such assets. Seen in the context of the Statement of Objects and Reasons and the Preamble of the IBC, this provision ensures that its stated purpose of achieving preservation and maximization of the assets of a corporate debtor is not defeated. In fact, to ensure that such assets remain protected, even whilst in the hands of an Interim Resolution Professional or a Resolution Professional, as the case may be, Section 28(1)(d), creates a further fetter and provides that a resolution professional, during the corporate insolvency process, shall not 'record any change in ownership interest of the corporate debtor', without prior approval of the Committee of Creditors. 15. A reading of the aforesaid provisions makes it clear that, in effect, an unexecuted decree, in the hands of a decree holder under the IBC regime, cannot be executed. At best, a decree signifies a claim that has been judicially determined and in that sense is an 'admitted claim' against the corporate debtor. Therefore, the IBC rightly categorises a decree-holder, as a creditor in terms of the definition contained in Section 3(10). At best, a decree signifies a claim that has been judicially determined and in that sense is an 'admitted claim' against the corporate debtor. Therefore, the IBC rightly categorises a decree-holder, as a creditor in terms of the definition contained in Section 3(10). Execution of such a decree, is however subject to the fetters expressly imposed by the IBC (in addition to and over and above the requirements and limitations of the execution process under the CPC), which cannot be wished away.' 3.5 Being aggrieved by the Impugned Judgement, the PIL Petitioner challenged the same by way of SLP (C) 6104 of 2022. The Hon'ble Supreme Court, by its order dated 11.04.2022, was pleased to dismiss the said SLP in the following terms: 'We are not inclined to interfere with the impugned judgement. The special leave petition is dismissed. Pending application stands disposed of.' 3.6 The Review Petitioner submits, that at this stage one news item titled as 'Decree Holders Can't be Treated at Par With Financial Creditors Under IBC : Supreme Court Upholds HC Verdict' was flashed on LiveLaw on 12.04.2022. The Review Petitioner became aware of the order dated 14.03.2022 on 20.04.2022 and thereafter realized that 'the PIL namely, WP(C) No.4 of 2022 has been dismissed, but the observations and the conclusions made therein would cause immense loss, damage and prejudice to the Review Petitioner.' Being aggrieved by the aforesaid, the Review Petitioner challenged the Impugned Judgement before the Hon'ble Supreme Court by way of SLP (C) Diary No.14856/2022. The said SLP was dismissed as withdrawn by an order dated 21.05.2022, in the following terms : 'Against the impugned order a special leave petition already stands dismissed. The petitioner was not a party in those proceedings. Learned senior counsel for the petitioner states that there are some observations from paragraph 13 to 15 which may effect pending litigation relating to the petitioner. If that be the position, it is for the petitioner to approach the High Court to seek appropriate relief. The special leave petition is dismissed with the aforesaid liberty.' 4. The present review petition has been filed in the aforesaid background in terms of the liberty granted by the Hon'ble Supreme Court. Review of the Impugned Judgment is sought by the Review Petitioner. 5. The special leave petition is dismissed with the aforesaid liberty.' 4. The present review petition has been filed in the aforesaid background in terms of the liberty granted by the Hon'ble Supreme Court. Review of the Impugned Judgment is sought by the Review Petitioner. 5. The Learned Counsel for the Review Petitioner submitted that the PIL matter was moved by the Respondent No.1, who is an Advocate with a standing of two years, raising commercial issues of substantial importance. Further, the Review Petitioner, who is contesting similar issues in proceedings pending before the National Company Law Appellate Tribunal ('NCLAT') is seriously prejudiced by the determination of such issues in the Impugned Order which was passed in vacuum and without any notice being issued to the members of the public, who would otherwise be interested in such issues. 6. The Learned Counsel for the Review Petitioner drew our attention to an arbitration pertaining to an MOU dated 28.06.2004 and Addendum dated 10.12.2004 between the Review Petitioner and one Shree Ram Urban Infrastructure Limited ('SRUIL'). Suffice it to say, an award was passed in the arbitration proceedings in favour of the Review Petitioner. Section 34 petitions with respect to the Award were dismissed by the Hon'ble High Court of Bombay. Section 37 appeals challenging the said orders were also dismissed by the Division Bench of the Hon'ble High Court of Bombay on 11.10.2018. Three SLPs, one wherein the IRP was the Petitioner and two others filed by VIT and an ex-director of SRUIL, that were filed against the order dated 11.10.2018 also came to be dismissed on 16.10.2020 and as such the award became final and the rights therein crystallized. In the meanwhile, in 2017, the Review Petitioner had initiated execution proceedings before the Hon'ble Bombay High Court for enforcement of the arbitral award which are still pending. Leave was granted by the Hon'ble Bombay High Court under Section 446 of the Companies Act, 1956. There was no objection made by any of the parties. It is stated that a Section 7 application also came to be admitted by the NCLT admitting SRUIL to corporate insolvency resolution process on 06.11.2019. Given the dismissal of the SLPs, the Review Petitioner filed IA No.1921 of 2021 before the NCLT for passing necessary directions against the IRP of SRUIL to take necessary steps for executing the decree. It is stated that a Section 7 application also came to be admitted by the NCLT admitting SRUIL to corporate insolvency resolution process on 06.11.2019. Given the dismissal of the SLPs, the Review Petitioner filed IA No.1921 of 2021 before the NCLT for passing necessary directions against the IRP of SRUIL to take necessary steps for executing the decree. On 08.10.2021, an order was passed in the said IA No. 1921 of 2021 allowing the prayers made by the Review Petitioner and directing the IRP to join the execution proceedings. This order dated 08.10.2021 was challenged by a Financial Creditor before the NCLAT and is pending consideration. It was contended that given the aforesaid facts, the Review Petitioner is aggrieved by the observations in the Impugned Order. It is further submitted that none of these facts were brought to the notice of this Court by the PIL Petitioner. 7. There is some merit in the contentions of the Review Petitioner. The Review Petitioner placed reliance on the reasoning contained in the order dated 08.10.2021, passed by the NCLT in its IA No. 1921 of 2021. The facts noted in the said order are telling. From a reading of the order dated 08.10.2021, it seems that pursuant to the MoU dated 28.06.2004 and Addendum thereto dated 10.12.2004, between the Review Petitioner and SRUIL, a sum of Rs. 30 crores was paid by the Review Petitioner as part payment for the sale of decreed property in 2004 itself. Arbitration proceedings for specific performance had to be resorted to in 2005 as the Review Petitioner was ready and willing to perform its part, however SRUIL tried to resile from the deal. Various protective orders were also placed by the Bombay High Court, from 2005 onwards from time to time and continue to remain operative till date. In this regard the following dates mentioned in the Review Petition are of some importance: 29.08.201614/17.07.2017 Section 34 Petitions filed by SRUIL and VIT against the Arbitration Award were dismissed by the Bombay High Court. 14.11.2017 Review Petitioner filed Commercial Execution Application No. 134 of 2017 before the Bombay High Court for execution of the Award. No objections have been filed to this application by SRUIL till date. 02.02.2018 Leave under Section 446 of the Companies Act, 1956 was granted in favour of the Review Petitioner permitting execution of the decree. 14.11.2017 Review Petitioner filed Commercial Execution Application No. 134 of 2017 before the Bombay High Court for execution of the Award. No objections have been filed to this application by SRUIL till date. 02.02.2018 Leave under Section 446 of the Companies Act, 1956 was granted in favour of the Review Petitioner permitting execution of the decree. 11.10.2018 Appeals filed by SRUIL (prosecuted through the Official Liquidator of the Bombay High Court) and VIT under Section 37 of the Arbitration & Conciliation Act, 1996, against order dated 14.07.2017/ 17.07.2017, were dismissed by the Division bench of the Bombay High Court. 30.04.2019 The Provisional Liquidator of SRUIL challenged the order dated 11.10.2018 by way of SLP(C) No. 012495 of 2020. 06.11.2019 During the pendency of the aforesaid SLPs, the NCLT admitted a petition for CIRP of SRUIL under Section 7 of the IBC. Given the same the IRP appointed by NCLT, approached the Bombay High Court to take over the assets of SRUIL from the Provisional Liquidator. 28.11.2019 The Bombay High Court directed the IRP to make payments of the funds required to be reimbursed to the Provisional Liquidator, and directed the Provisional Liquidator to handover the assets of SRUIL upon such payment being made. 08.10.2020 The Hon'ble Supreme Court allowed the IRP to be brought on record as the Petitioner in place of the Provisional Liquidator in SLP(C) No.012495 of 2020. 16.10.2020 The Hon'ble Supreme Court dismissed the SLP (C) No. 012495 of 2020, wherein the IRP of SRUIL was the Petitioner. By the same common order, SLPs filed by the another party (VIT), and erstwhile directors of SRUIL were also dismissed. 17.12.2020 The Bombay High Court, passed another order in IA 243 of 2021 filed by the Review Petitioner observing, inter alia, that '.......... The challenge to Award having failed and the same now becoming final, it is absolutely necessary and in the interest of all parties............ that the said property is adequately protected.' 23.06.2021 In response to the communications of the Review Petitioner, the IRP of SRUIL informed the Review Petitioner that the relevant facts with regard to the said property had been put before the COC. It was also informed that the said property would not form a part of the CIRP. It was acknowledged that SRUIL was entitled to receive Rs. 75,30,00,000/- from the Review Petitioner for execution and registration of the conveyance documents. It was also informed that the said property would not form a part of the CIRP. It was acknowledged that SRUIL was entitled to receive Rs. 75,30,00,000/- from the Review Petitioner for execution and registration of the conveyance documents. Further, receipt of this sum would be beneficial to the CIRP as the same could be utilised to reimburse the Liquidator and take over assets of SRUIL. 28.07.2021 The Bombay High Court, considered the Official Liquidator's report No. 42 of 2021, with regard to collapse of boundary wall of the said property. Taking into account the incapacity of the liquidator and the IRP to pay for repairs, the High Court, inter alia directed the Review Petitioner to bear the expenses towards repairs of the collapsed wall on the subject property. 8. Based on the aforesaid facts, the NCLT, in its order dated 08.10.2021, passed in IA No. 1921 of 2021, considered the application of Section 14 on the said property. The question, framed by the NCLT, and in our considered opinion, rightly so, was 'In order to examine that whether such bar is applicable in the present case or not, it is necessary to examine whether the property in question is the asset of the Corporate Debtor?' From the sequence of events, it appears to us that the rights of the Review Petitioner with regard to the said property had already fructified and crystallised. This is borne out by the fact that the Hon'ble Supreme Court, even after being apprised of the Section 7 proceedings, dismissed the SLP (C) No. 012495 of 2020, wherein the IRP of SRUIL itself had been transposed as the petitioner. The other two SLPs were also dismissed. Further, the property had already been sequestered from the assets of SRUIL by virtue of the orders passed by the Bombay High Court, especially the order dated 17.12.2020 that has been quoted hereinabove. The sequestering from assets was to the extent that when the boundary wall of the property collapsed, the Bombay High Court directed the Review Petitioner to take care of the remedial works pertaining to subject property at its own cost. Suffice it to say, even the email correspondence of the RP, indicates that the said property was not to form a part of the CIRP. 9. Suffice it to say, even the email correspondence of the RP, indicates that the said property was not to form a part of the CIRP. 9. Viewed from another angle, once the property in question had been already kept out of the CIRP, the orders passed by the Bombay High Court in execution proceedings could not have been ignored by the NCLT. This is specially so, when the orders passed not only directed that the vacant physical possession be handed over to the Review Petitioner, but also directed to ensure that the said property in 'adequately protected' in that regard. Given the same, the NCLT found that, 'the decreed property is in the possession of the Corporate Debtor but held in Custodia Legis, viz, in the custody of the Court and presently held in trust of the Applicant...' We find merit in the aforesaid observation. While the NCLT referred to various provisions of the Insolvency and Bankruptcy Code, 2016 ('Code') in its order, we find further support for this finding in the Explanation to Section 18 of the Code. The said explanation reads as under: 'Explanation. - For the purpose of this sub-section, the term 'assets' shall not include the following, namely :- (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangement including bailment;....' 10. The Case at hand is an example of the interplay between the aforesaid explanation to Section 18 and other provisions of the Code on the peculiar facts of the case, in our considered view, the NCLT correctly found that the decreed property was an asset of the Review Petitioner held in trust by the corporate debtor. In fact, it was even being maintained by the Review Petitioner in terms of orders of the Bombay High Court. The said property was merely in possession of the Provisional Liquidator of SRUIL, held in constructive trust for the Review Petitioner. 11. Another aspect to be kept in mind, is the fact that the NCLT has recorded in its order dated 08.10.2021 that the IRP does not have any funds to run the CIRP. The said property was merely in possession of the Provisional Liquidator of SRUIL, held in constructive trust for the Review Petitioner. 11. Another aspect to be kept in mind, is the fact that the NCLT has recorded in its order dated 08.10.2021 that the IRP does not have any funds to run the CIRP. This is also borne out by the orders passed by the Bombay High Court, that acknowledge that neither the Provisional Liquidator, nor the IRP was in a position to maintain the property and carry out repairs on the fallen boundary wall due to lack of funds. Further, the IRP has categorically averred before the NCLT, that the creditors of SRUIL had refused to infuse any funds to carry out the CIRP. In this context, the Rs.75,30,00,000/- that is to be received by SRUIL in terms of the orders passed by the Bombay High Court and upheld by the Hon'ble Supreme Court, are crucial to ensure that the CIRP of the corporate debtor in the present matter happens in a meaningful manner. Further, once we have observed that the property itself is not an asset of SRUIL, maximisation of assets of the corporate debtor can be achieved, only by the IRP moving to secure the Rs. 75,30,00,000/-, which surely is a receivable of SRUIL. The Hon'ble Supreme Court in P. Mohanraj & Ors. v. Shah Brothers Ispat Pvt. Ltd., (2021) SCC Online SC 152 emphasised the need to consider Section 14 as a shield to protect a corporate debtor as a going concern. To interpret the section as a fetter to the corporate debtor having access to these amounts would be doing violence to the stated object of the Code. 12. The aforesaid factual matrix, points to a situation quite distinct from the status of decree holders as was discussed in our judgment dated 14.03.2022, which is under review. Hence, the Review Petition is not merely a decree holder, but a person whose rights stand crystallised and vested by virtue of orders passed by various courts, that pre-date the IBC process. In such situations the provision contained in the Explanation to Section 18 and other relevant provisions of the Code, would come into play. Whether such balancing is required would be determined on facts in each case. In such situations the provision contained in the Explanation to Section 18 and other relevant provisions of the Code, would come into play. Whether such balancing is required would be determined on facts in each case. Suffice it to say, in the facts of the present case, we can find no fault with the order passed by the NCLT which treats the property as being held in trust by the corporate debtor for the benefit of the Review Petitioner. In fact, in the fact of the present case, the CIRP process can be protected and consummated only if the corporate debtor is able to convey the same for balance consideration of Rs. 75,30,00,000/-. This is the only way to further the intent of the Code. 13. Reliance is also placed by the Review Petitioner on the judgment of the Supreme Court in Dena Bank (Bank of Baroda) v. C. Shivakumar Reddy & Anr., (2021) 10 SCC 330 . The said judgment deals with the issue limited to, whether a decree holder for payment of money is a financial creditor or not, owing to the nature of the debt owed. The same has been upheld by a three Judge Bench of the Hon'ble Supreme Court in the case of Kotak Bank. 14. While we would not normally have commented on the NCLT decision, which is pending consideration of the Hon'ble NCLAT, given the liberty granted to the Review Petitioner by the Hon'ble Supreme Court, we had no choice but to consider the matter on merits. Looking into the facts pertaining to the case of the Review Petitioner, the Impugned Order did not appreciate the need to balance the considerations of Section 18 of the Code viz-a-viz the moratorium under Section 14 of the Code. The Impugned Order is therefore modified to the extent that it shall not effect the rights of the Review Petitioner to the subject property that has been upheld upto the Supreme Court and also stands crystallised by various orders passed by the Hon'ble Bombay High Court which are still in operation. As held by the NCLT, the conveyance however, shall be subject to the payment of the balance consideration by the Review Petitioner. 15. For all these reasons, the Review Petition is allowed to the extent as aforesaid. 16. Pending application(s), if any, also stands disposed of.