P L D 1963 (W (PLP)

But in spite of this, his obligations are limited by certain important qualifications and conditions. The first condition is that there must be a judgment against the insured ; the second is that the judgment must be in respect of a liability which is required to be covered by compulsory insurance. Then certain qualifications must be fulfilled in order to make the insurer liable on a judgment in favour of a third party, the most important among them being that the insurer must be given notice through Court of the bringing of the proceedings in which the judgment is given either before or after the commence ment of those proceedings. This is apparent from section 96 (2) of the Motor Vehicles Act, which is reproduced below :- "(2) No sum shall be payable by an insurer under sub section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal ; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds namely (a) * * (b) * * (c) * * The contention of Mr. Riazul Hasan that the object of the notice, besides enabling the insured to defend the action in his own right on any of the - grounds mentioned in section 96 (2), is to enable the Insurance Company to see that the decree against the insured is not passed collusively, cannot be accepted in the face of the terms of the above-mentioned subsection. The learned counsel in this respect relied on a decision of the Bombay High Court in Royal Insurance Company v. Abdul Mahomed (A I R 1955 Bom. 39). But the view enunciated in this decision is opposed to the view expressed by the Indian Supreme Court in B. I. G. Insurance Co. v. Ilbar Singh (A I R 1959 S C 1331). It was contended before, the Indian Supreme Court that the Insurance Company on being added as a defendant in a third party suit, was entitled to take all legal defences excepting those expressly prohibited by section 96 (2). This contention was repelled and it was held that the only manner of avoiding liability provided for in subsection (2) is through the defences mentioned therein, and that other defences are not open to an insurer. Mr. Riazul Hasan, in support of his contention has also relied on the case of Surup Singh v. Nilkant Bhaskar (A I R 1953 Bom. 109) and of Windsor v Chaleraft ((1939) 1 K B 279). But none of these decisions have any hearing on the point involved in this matter. The right to defend an action by an insurer in the name of the assured has nothing to do with sub section (2) of section 96 of the Motor Vehicles Act. It has an independent footing, and has its source in the common law of England under which, if a policy empowers an insurer to take over. in the name and on behalf of the assured, the conduct and control of the defence of the proceedings, he is entitled to defend the suit in the name of the assured by indemnifying him for the costs of the litigation. It is, therefore, apparent that the only object of section 96 (2) is to provide an opportunity to the insurer to avoid his liability on those grounds which are mentioned in those clauses, and on no other grounds. This being the legal position, the next question arises whether the notice contemplated under section 96 (2) through the Court should be given to the insurer before a judgment is passed in a third party suit, or can it also be given in execution proceedings or in an appeal against such judgment. This question has received my anxious consideration, and it seems to me that on the terms and phraseology of subsection (2) of section 96 of the Motor Vehicles Act, a notice given to the insurer in the execution proceedings or in appeal will be perfectly valid and an insurer will not be able to avoid his liability on the ground that the notice was not given to him before the conclusion of the proceedings in which the judgment was given. It is quite clear to me that the only way in which the insurer can avoid his liability in such cases is that he must contest his liability on any of the grounds mentioned in the subsection, in the manner provided therein. I shall now examine the qualifications under which an insurer can avoid his liability in respect of the judgment mentioned in section 96 (1) of the Motor Vehicles Act. The only qualification laid down in subsection (2) of section 96 is that no sum shall be payable by an insurer under subsection (1) in respect of any judgment unless before or after the commence ment of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, and an insurer to whom notice. of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the grounds mentioned therein. It is not disputed that a notice before the commencement of the proceedings in which the judgment is given, though through Court, will not and cannot be given in the proceedings in which the judgment is ultimately passed. On the other hand, such notice can only be given by a separate application with the object of informing the insurer of the intention of the third party of bringing proceedings against the assured to claim compensation in a running down accident. The question arises : whether on receiving such notice, the insurer is entitled to contest such application and wk the Court which issued the notice to absolve him of all the responsibilities on the grounds mentioned in section 96 (2). Before considering this question, it may be mentioned that under the English law, the position is entirely different. Under it, the insurer is not entitled to be added as a party to the proceedings in which the judgment is given. The only requirement under the English law is that a notice must be given either before or after the com mencement of the proceedings in which the judgment is given to the insurer. It is not necessary under the English law to give such notice through a Court of law. Then, under the English law the insurer instead of getting himself impleaded as a party to the third party suit, is required to obtain a declaration by a separate action commenced before or within three months after the commencement of the proceedings in which the judgment was given that he is entitled to avoid his liability on the ground that the policy was obtained by non-disclosure of a material fact or by representation of facts false in some material particular, or if he has avoided the policy on that ground that he was entitled so to do apart from any provision contained in it. Therefore, any decision of the English Courts on the question under consideration is not relevant and can possibly have no bearing on the decision of this matter. In' my opinion under the Pakistan statute, it is open to the insurer to contest his liability by moving the Court to determine his liability in the proceedings in which the application is given: It is not necessary for him to wait till a suit is filed by a third party for establishing his claim against the assured. Similarly, in my opinion, it is not obligatory on the third party or the assured to give notice of the bringing of the pro ceedings in which the judgment is given before the pronouncement of the judgment. In the first place, there is no time limit fixed in subsection (2) of section 96, secondly, if the notice given before the commencement of proceedings is valid, it is difficult to follow why a notice given after the pronouncement of judgment should be considered to be outside the scope or not in accordance with this provision of law. Mr. Riazul Hasan contended that a notice given after the pronouncement of the judgment will be ineffective because the insurer will not be able to defend the suit on the defences open to him. This contention has failed to impress me for obvious reasons. The only object of the notice is to enable the insurer to contest his liability on certain legal defences open to him. There is little doubt that this can be effectively done and easily achieved even in the proceedings subsequent to the judgment. The position might have been different in case the object of the notice had been to- provide an opportunity to the insurer to defend the suit on merits. But this being not the object, it is difficult for me to appreciate what prejudice would be caused to the insurer if the notice is given to him after the judgment is passed. I am also not impressed by the argument of the learned counsel for the Insurance Company that the words in section 96 (2) : "shall be entitled to be made a party thereto and to defend the, action on any of the following grounds" refer to the stage in the suit before the judgment is pronounced. The very fact that the Legislature has not used the term "suit" but "action" clearly indicates that the right to defend the action, or to contest the liability, was not confined to a particular stage in the a suit. The term "action" in its popular sense is used as denoting action commenced by writ or plaint or application. There is nothing in this subsection to prevent an insurer from becoming a party to the proceedings in which an application to give notice to him is preferred and defend those proceedings or action on the grounds available to him under the above provision of law. It must also be borne in mind that, according to the well- recognised principle of interpretation of statutes, it is the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. In fact, the rule is that even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. Of course, by this I do not mean to suggest that the statute should be strained. to include cases plainly omitted from the natural meaning of the words. But, if there are circumstances in the Act showing that the phraseology is used in a larger sense than its ordinary meaning, that sense may be given to it. It may further be noted that where the object of a statute is the public safety, the rule of construction is that the wording may be interpreted widely to effect that object : (See Maxwell on Interpretation of Statutes, 10th Ed., pp. 68-69 under the heading `Beneficial Construction'). I would, therefore, emphasize that the object of the statute under consideration is to suppress hardships of the third party, namely, if the owner of the motor vehicle is not in a position to meet the liability, he can have recourse for his claim against the Insurance Company to the extent provided under the provisions of the Motor Vehicles Act. In my opinion, if any other con struction is given to the provisions of section 96 (2), the above mentioned object will be clearly defeated, and I am not prepared to give such a construction if it is not warranted by the language of the provision of law under consideration. I would, now, assume for the sake of argument that the notice contemplated under section 96 (2), Motor Vehicles Act, must be given in the proceedings in which the judgment is obtained by a third party against the assured : the question is whether the proceedings in which the judgment is given, include the execution proceedings or the proceedings in appeal filed against such a judgment. Fortunately, the term "proceedings" has been the subject-matter of a number of judicial decisions. It has been particularly interpreted with reference to section 6 of the General Clauses Act in which it is provided that "

6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- * ** * * ** * (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ;" It was held in Deb Narain Dutt v. Narendra Krishna & Co. (I L R 16 Cal. 267) "The word `proceedings' is a very general one, it is not limited to proceedings connected with civil suits ; but includes, I suppose, proceedings other than civil proceedings, and civil proceedings other than suits. When applied to suits, it may be , used to mean the suit as a whole, or it may be used, and often is used to express the separate steps taken in the course of a suit the aggregate of which makes up the suit."' In Satghuri v. Mujidan ( I L R 15 Cal. 107) the word "proceedings" in section 6 of the General Clauses Act, as applied to a suit, was held to mean the suit in its entirety, that is, down to the final decree. It would, therefore, be seen that the word "proceedings" is a very general one and when referred to civil proceedings in the nature of a suit, means the suit in its entirety down to the final decree. In Mungul Pershad Dichit v. Grija Kant Lahiri (ILR 8 Cal. 51) the question before the Privy Council was whether an application for execution was governed, in respect of limitation by the Limitation Act of 1859 or that of 1871, and the Privy Council held that an application for execution is an application in the suit and, therefore, the provision in the latter Act except for suits commenced before a certain date applied to proceedings in execution in such suits. Thus it would be seen that execution proceedings are also considered to be a step in a suit and are considered as proceedings in suits. The same is the position with regard to appeals. In Ratanchand Serichand v. Hanmantra :'. Shivbakas (6 Bom. H C 8,166), a Full Bench of the High Court held that the repeal of an Act under which an appeal lay against a decree did not bar the appeal in a case in which the decree was passed before but the appeal presented after the repealing Act. The learned Judges of the Bombay High Court in this connection observed as under :- "The question is whether the word `proceedings' is sufficiently comprehensive to include a suit in which a decree has been given. We are of opinion that it is, and this opinion is in accordance with the construction of section 2 of the Amended Letters Patent of the High Court, of December 1865, which was adopted by the Court in the case of Framji Bomanji v. Hormasji Barjorji 3 Bom. H C Rep. O C J

49. The words of that section are `that all proceedings commenced in the said High Court prior to the date of the publication of these Letters Patent shall be continued and depend in the said High Court as if they had commenced after the date thereof'. A suit is a judicial proceeding, and the word `proceedings' must be taken to include all the proceedings in the suit from the date of its institution to its final disposal, and therefore to include proceedings in appeal. It follows, in the judgment of the Court, that in all suits commenced before the passing of the Bombay Courts Act, the procedure must (unless another mode of procedure is expressly substituted by that Act) be the same as it would have been if that Act had not been passed. The appeal, therefore, in the case before the Court must be made, not to the High Court, but to the District Judge to whom the appeal would have lain if the Bombay Courts Act had not been passed." In another case before Allahabad High Court, viz. Thakur Prasad v. Ahsan Ali (I L R 1 All. 668) it was held by the Full Bench that under clause (6) of the General Clauses Act an appeal is a part of the same proceedings as the thing appealed against. So it will - be noticed that the term "proceedings" used in section 6 of the General Clauses Act with reference to suits has been held to apply both to proceedings in execution of such suits, and the proceedings in appeal. Mr. Riazul Hasan contended that the words "unless before or after the commencement of the proceed ings in which the judgment is given" mean only the proceedings prior to the passing of the judgment. I have not been able to appreciate why such a limited construction should be given to these words. If the proceedings in which the judgment is given are in the nature of suit, it is quite apparent that the execution proceedings are also a part of such suit and the appeal filed from the judgment passed in that suit will also be considered to be included in the term `proceedings'. In my opinion, in view of this legal position, it would be most unfair if such a restricted construction is given to these words. Mr. Riazul Hasan contended that if the notice is given at the stage of appeal, it will not be possible for the Insurance Company to contest its liability, because in the appellate Court no pleadings are allowed to be filed. This contention has no substance. If a notice is given to an Insurance Company in appeal. The Insurance Company can easily come forward and say that it wants to contest its liability on the grounds mentioned in section 96 (2) and the case be remanded to the trial Court for consideration of its liability. This prayer would be quite legitimate and the appellate Court can remand the case for the decision of such objection and there is nothing in law to prevent it from doing so. I have considered this question from a different angle also. Suppose a judgment is passed in a third party suit and an appeal is filed as in the present case against that judgment by the assured in respect of his liability. In law, a judgment and decree passed in appeal takes the place of a judgment and decree passed by the subordinate Court. The judgment and decree which will be executable will be that of the appellate Court, and not of the trial Court. Thus, it is quite obvious that the words "legal proceedings in which the judgment is given", referred to in section 96 (2), include the judgment passed in appeal, and it is not possible for me to accept that that is not the legal position under the Code of Civil Procedure. I have also in arriving at my conclusion considered the effect of subsection (2-A) of section 96 of the Motor Vehicles Act. This subsection refers to suits brought on foreign judgments. It lay down that such judgment will not be binding unless before or after the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court in the foreign country of the bringing of the proceedings and had a right to be made a party to the proceedings and to defend the action on the, grounds similar to those specified in subsection (2). With great respect, notice in such case given in a suit brought on foreign judgment cannot be of any avail or purpose. Such suit cannot be considered by any stretch of argument as the pro ceedings in which the judgment was given. In these circumstances, I am quite clear in my mind that the objection of Mr. Riazul Hasan that the Insurance Company's liability has been extinguished because no notice was given to it after the commencement of the proceedings before the passing of the judgment has no substance, and must be rejected. In this view of the matter, 1 would hold that the notice given by the appellants to the insurance Company in this appeal is a perfectly valid notice and their liability on the judgment passed by this Court in this appeal subsists and has not extinguished. It may be mentioned that the Insurance Company has not raised any objection.before us that they want to contest their liability on any of the, grounds mentioned in section 96 (2). The only objection before us is that they are not liable to pay the amount of the decree because no notice was given to them before -the judgment was passed by the trial Court. I have already discussed this aspect of the question and have found no force in it. QADEERUDDIN AHMED, J.-This is a reference, if I may say ~o with respect, by two able Judges of this Court, namely, Wahiduddin Ahmed, J. and A. S. Faruqui, J. It has been made in an appeal in which the Asian Mutual Insurance Company denied its liability as the insurer of a bus of the appellants to pay the sum that was decreed in favour of the respondent on account of the death of Shamsur Rehman, who was killed by the bus. The Company's stand was that no liability was created against it because no notice in terms of subsection (2) of section 96 of the Motor Vehicles Act, 1939 was given to it before the judgment of the trial Court. Admittedly, notices were given to the Insurance Company through Court, firstly, during the execution proceedings and then during the pendency of the appeal, but not earlier, A. S. Faruqui, J. has upheld the objection and come to the conclusion that the Company was not liable to pay the decretal amount, but Wahiduddin Ahmed, J. has held in a separate judgment, that the objection has no force in it. Their difference of opinion has resulted in this reference, which has been framed by the learned Judges as follows :- "In order that the insurer may be held liable as if he were the judgment-debtor in terms of section 96 (1) of the Motor Vehicles Act, whether the notice required under section 96 (2) must be given in the suit itself, where no such notice has been given before the institution of the suit, or whether such a notice in appeal from the judgment of the trial Court, or in the execution proceedings, will satisfy the requirements of section 96 (2) so as to make the insurer liable as the judgment /debtor ?"

2. I have the benefit and have had the pleasure of studying both judgments. No effort was spared by the learned Judges for going deep into the question and taking a comprehensive view of the law. Section 96 of the Act has been interpreted after applying all the three methods of interpretation which are generally recognised and are. acceptable to reason, namely analytical, by examining several parts of the section ; historical, by setting out the background of the provision to discover historical trends and to seek guidance from them ; and philoso phical, by looking for the objects of the provision and keeping them in view to find the meaning of the language. It is a notable feature of the judgments that no doubt is entertained in either of them as to the correctness of the conclusions, although they are inconsistent with each other. These carefully written judgments provide a stimulating study of the processes of judicial mind.

3. They remind me of the following passage quoted by Crawford, at page 286 of his work, viz. Statutory Construction (1940 Ed.) from Gray's book : The Nature and Source of the Law :- . "The dependence of the statutes upon the will of the Judges for their effect is indicated by the expression often used, that interpretation is an art and not a science ; that is, that the meaning is derived from the words according to the feeling of .the Judges, and not by any exact and foreknowable processes of reasoning. Undoubtedly rules for the interpretation of statutes have been sometimes laid down, but their generality shows plainly how much is left to the opinion and judgment of the Court." In the sense of this quotation, Judges sometimes play the role of artists, and let me recognise that when they do so, their souls are pervaded with sincerity as much as those of the artists. They give expression to what they see and feel while the transparency of their sincerity makes personal preferences indistinguishable from their objective views. This influence of personal preferences on judicial pronouncements makes me conscious that my effort may amount to nothing more than adding another individual preference to one or the other of the two views. I shall, therefore, attempt to avoid this by choosing a process of reasoning which should excluded as much as is practicable my personal incli nations including those of them which may be inarticulate.

4. To achieve this object I have asked myself the question as to what is the best process of thought that should be adopted and have been helped in finding the answer by a quotation from the judgment of Lord Greene In Re Debtor ((1948) 2 All E R 533) reproduced by Maxwell at page 2 of his book on Interpretation of Statutes (10th Ed.), as follows :- "If there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used." The words and combination of words used in subsection (2) of section 96 will be the surest guide as well as decisive, provided that their meanings taken as a whole do not produce any ambiguity or uncertainty. I shall not rely on equitable inter pretation, because it is likely to expose me to the temptation of ascertaining inter-party equities according to my inclinations and then collecting and adjusting all that can be found to support them. Wahiduddin Ahmed, J. has found the equities to be that hardship to the third-party, namely the appellants, for whose benefit the insurance was taken, must be eliminated as the first object of the law, and that this object would be defeated if notice was held to be necessary before judgment was given by the trial Court : (See paragraph 14 of his judgment). A. S. Faruqui, J. has, on the other hand, emphasized that he could not "agree that the framers of the Act contemplated the defending of the action at the stage of the appeal", because the Insurance Company could not get a reasonable opportunity of defending the act at that stage, and that, therefore, the Company should have had notice before the judgment was delivered by the trial Court: (See the middle portion of paragraph 14 of his judgment) . They have with equal facility arrived at these conflicting conclusions historically also : See paragraphs 4 to 6 of the judgment of Wahiduddin Ahmed, J. and paragraph 16 of the judgment of A. S. Faruqui, J.'' because the interpretation of historical events is as much open to the influence of personal pre-disposition as equitable interpretation. I cannot entirely disagree with these conclusions on their respective equitable merits, and if I did disagree with any of these equitable grounds, my own preference for one or the other of them would not be conclusive. I cannot rely on any precedent for answering the question that has been raised in the reference, though there are suggestive expressions in several of them, because in none of those precedents which have come to my notice any observation has been made with a full realization that the question did or could arise and that it was being deliberately answered in it. Using merely suggestive expressions to support one or the other view may amount to manipulating them.

5. I would, therefore, like to see if there is any sufficient clue in the language of the section itself to directly lead me to a conclusion regarding the time at which notice ought to have been given to the insurer. If such a clue is found, then that will be decisive. In this respect I may be following a somewhat different method from those which were adopted by my learned brothers, but I should not be understood to be preaching theoretical "positivism" because my effort will be to escape from "the bewitchment of our intelligence by" the spell of the language and to be guided by words merely - as the surest available vehicle of legislative intent.

6. There are two words in subsection (2) of section 96 of~ the Act which have impressed the learned Judges differently ; they are : "proceedings" and "action". I shall guard myself against the chance of falling into an error by the ambiguity that may be dwelling in them by giving full effect to the other words and combination of words about which no doubt has been raised either in the two judgments or during the arguments addressed to me. This process is likely toe reveal the true scope of these two words also. I need not pause to justify the adoption of this process because it is a well-known rule of analytical inter pretation that effect should be given to every word and expression in a statute, but I may state that giving full effect to an expression includes the consideration of its true implications This is not a new proposition, because Crawford has stated at page 267 that- " . true implications are as much a part of the language which makes -up the statute as the meanings of the various words are a part of it ;" and has explained the reason, on the same page, as follows :- "The reason for allowing the Court to give effect to necessary implications is quite apparent. Many matters of minor detail are often omitted from legislation. If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission."

7. Taking up the examination of section 96, which has been reproduced in extenso by A. S. Faruqui, J. in paragraph 11 of his judgment, I may state for convenience of reference that subsection (1) of that section provides that after a certificate of insurance is issued in favour of a person by whom a policy of third-party risk is taken and then a judgment is obtained in respect of the liability created by the certificate, the insurer, is bound to pay the decretal amount to the person entitled to the benefit of the decree as if he were the judgment debtor : provided that the requirements of the other provisions of the section are also complied with. There is no doubt or dispute about this provision. The controversial part of the section is subsection (2) only, which I reproduce here as I read it for the present purposes :- "(2) No sum shall be payable by an insurer under sub section (1) in respect of any judgment unless before or after the com mencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment s o long as execution is stayed thereon pending the appeal ; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :- (a) that the policy was cancelled , . . . .; or (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :- . . . (c) that the policy is void on the ground that . . . . ."

8. Wahiduddin Ahmed, J. has come to the conclusion that the notice required to be given under the above-quoted sub-section (2) can be served after the judgment mentioned in the subsection has been given, because the word "proceedings" has a wide meaning and includes the proceedings of a suit as well as the proceedings of an: appeal. His conclusion, therefore, is that the required notice can be given during the execution proceedings or in appeal : (See the last part of paragraph 15 of his judgment). He has observed that this view finds support on the further ground that- "The term `action' in its popular sense is used as denoting action commenced by writ or plaint or application: There is nothing in this subsection to prevent an insurer from becoming a party to the proceedings in which an application to give notice to him is preferred and defend those proceedings or action on the grounds available to him under the above provision of law." The words "by writ or plaint or application" in the above quotation are notable.

9. Mr. Riazul Hasan pointed out that Wahiduddin Ahmed, J. has relied on section 6 (e) of the General Clauses Act, and some of those judgments that were given under it for interpreting the word "proceedings", and made a mild grievance on the ground that, according to counsel, such an argument was not advanced in appeal. I would dispose of this grievance by pointing out that even if counsel was right and the argument was not advanced, a Judge is entitled to himself study the law and make use of his own legal knowledge. In this case, counsel had little reason to feel aggrieved because he had the opportunity to represent his point of view during the hearing of the reference.

10. Counsel argued that the wide meaning assigned to the word "proceedings" in the judgment of Wahiduddin Ahmed, J. was not satisfactory because the expression used in clause (e) of section 6 of the General Clauses Act was : "any . . . . . legal proceeding" in which the word "any" made an important difference. Section 96 (2) of the Motor Vehicles Act, on the other hand, had an entirely different context, because in it the word "proceedings" was used with reference to those legal. processes in which judgment was given against the insured. The subsection has provided firstly that "No sum shall be payable by an insurer under sub section (1) in respect of any judgment . . . . . " Secondly, it has laid down the condition that- "Unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice . . . ." Thirdly, it has qualified the "notice by providing that' it should be- "Of the bringing of the proceedings". Fourthly, it has protected the insurer by giving him the oppor tunity to defend himself as follows :- "And an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action . . . ." Thus, the word "proceedings" is restricted to those of the proceedings in which any judgment is given by which the liability of the insured is created in respect of the certificate of insurance. Such a judgment can neither be given in execution proceedings, nor in proceedings commenced by an application to give notice to the insurer. It may, of course, be given in an appeal confirming, varying or reversing the judgment delivered by the trial Court, but proceedings in appeal according to the above quoted views of Wahiduddin Ahmed, J. himself, though included in the generic word "proceedings" are not included in the term action", because an appeal is not "commenced by a writ or plaint or application". This means that the total effect of both the words : "proceedings" and "action", which in their context refer to the same legal process, is that proceedings in execution as well as those in appeal are excluded for the purpose of notice.

11. I have reproduced the above argument because without changing the meanings assigned by Wahiduddin Ahmed, J. to the words "proceedings" and "action" it leads to the conclusion at which A. S. Faruqui, J. has arrived in his judgment.

12. Supposing for the sake of argument that the above mentioned reasons are not adequate to so exclude appellate and execution proceedings, effect will still have to be given to the requirements of subsection (2) that notice to be given to the insurer must be of "the commencement of the proceedings" or "the bringing of the proceedings"; which means that the con templated notice must have a substantial relationship with the initiation of the proceeding. For this connection of the notice with the commencement of proceedings, it is immaterial whether or not the word "proceedings" includes the whole stretch of those legal processes which begin from the institution of a suit and extend to appeal or execution, because if the notice is given after the judgment of the trial Court is delivered, it will be a notice during the proceedings and not truly a notice of the commencement or of the bringing of the proceedings. If the notice, which is given after judgment, says that "proceedings have commenced" or that "proceedings have been brought", then it will convey misleading information, because at least the first and the Most important part of the proceedings would have been at that time over. The corresponding English provision, which is section 10 of the Road Traffic Act, 1934, provides that notice should be given. "Before or within seven days after the commencement of the proceedings in which the judgment was given." There is no such restriction in section 96 (2), but a notice that is given after the judgment is delivered cannot in the real sense be said to be a notice of the commencement of the proceedings in which the judgment was given because such a notice will be too far removed from the beginning of the proceedings and hardly true to the situation having regard to conclusion by judgment of the first part of the proceedings, to be described as a notice of their initiation.

13. Moreover, section 96 (2) says that the insurer to whom the notice is given shall be entitled to be made a party to the proceedings and to defend the "action". As the words "the' action" refer to the proceedings in which any judgment is given by which the liability of the insured in respect of a certificate) of insurance is created, the insurer is expected to have the opportunity of defending himself against any such judgments if more judgments than one are given in the course of the proceedings, which may, according to circumstances, include more appeals than one, then he should have the opportunity to defend himself against all of them, and not against the second judgment or the third judgment only. This is irrespective of what defences may be open to him and how effectively he may be able to raise them. Such an opportunity could be afforded to him only if he had notice before the first judgment. The length and meandering course is of their commencement because there will be one commencement at the nearer end. In this sense-which I believe is the sense of the language of the provision the contemplated commencement coincides with the institution of the suit.

14. This restricted sense is brought out in the subsection by substituting the word "action" for the word "proceedings" in relation to defence by the insurer. The word "action" has not been used in our Code of Civil Procedure to denote any particular type of proceedings. It has several statutory definitions in English Law, but in its popular sense it has a restricted meaning in English terminology. A. S. Faruqui, J. has reproduced in paragraph 14 of his judgment some of the meanings of the word as given at page 2 of Volume I of Halsbury's Laws of England (Ed. III). After setting out several meanings of the word, the author has stated "It is, however, generally used in a popular sense as denoting a civil action commenced by writ or plaint." Commencement of proceedings by an application has not been included by the author in this sense of the term. The manner in which an action is terminated is described by the author at page 6 as follows "An action, in the strict sense of the term, ends at judgment. Thus a provision as to the costs of an `action' does not affect the costs of an appeal against the judgment therein ; so it was ruled that a release of `all actions' would not bar execution upon a judgment already obtained ; secus (contrariwise) a release of `all suits', for without `suit or prayer' none could have execution". This means that an `action' is terminated by judgment and does not include execution proceedings, but a `suit' includes execution proceedings. The author has pointed out at pages 21 and 33 that in England there was an ancient procedure of bringing appeals by means of actions of error or false judgment, but those actions were not appeals in the sense in which we under-stand them, because they ,.were independent actions in which there was no continuity from the original proceedings and the person appealing against the judgment of an inferior Court was called. the `plaintiff, in error'. Execution applications and appeals are thus not included in the term `action'.

15. The insurer can, of course, raise only those defences which are set out in causes (a), .(b) and (c) of subsection (2) of section

96. A glance at them will show that thev are all defences of fact and law, namely, cancellation of the policy of insurance, breach of certain conditions and nullity of the policy of insurance owing to suppression or misrepresentation of material facts. The opportunity afforded by law to raise these defences cannot be the contemplated opportunity if the insurer gets the chance of) raising them for the first time in first-appeal or revision, or before the Supreme Court, or before the executing Court. His right to raise these defences at the proper time is assured by the expression "to defend the action" or, in the terminology of our Code of Civil Procedure, the suit up to its conclusion by, judgment.

16. The word `suit' has not been used in the subsection because the pattern of section 10 of the Road Traffic Act, 1934 of England has been closely followed, but if the terminology of our Code had been used, it would have been necessary to qualify the word `suit' by some phraseology to exclude from its execution proceedings which are ordinarily considered to be a continuation of the suit.

17. Thus, giving full effect to the language of the provision and taking into consideration the necessary implications of the words and combination of words that are used in it, the answer that follows to the question under reference is that The notice required to be given to the insurer in terms of section 96 (2) of the Motor Vehicles Act; 1939 to make him liable as if he were the judgment-debtor in respect of the liability that is created by a certificate of insurance, must be given before the judgment is delivered in the suit, and not at any time afterwards. A. H. Question answered.