DEVINDER GUPTA, C. J.

( 1 ) A Division Bench of this Court expressed the view that the judgment in B. Nookaraju v. M. S. N. Charities, needs reconsideration. It related to the interpretation of Clause (4) of rule 58 of Order 21 C. P. C. The question was framed as under:"whether, against an order passed under Order 21 Rule 58 of the Code in respect of a claim or objection to the attachment of property, a regular appeal would lie as an appeal against the decree, or, a Miscellaneous Appeal against the order?"

( 2 ) ON a reference having been made, the matter is heard by this Full Bench. The facts, which gave rise to the filing of the C. R. P. , may briefly be stated as under.

( 3 ) PETITIONER filed O. S. No. 1 of 1998 against the 2nd respondent in the Court of junior Civil Judge, Huzurnagar, for recovery of certain amount. He obtained an order of attachment before judgment, dt. 21-1-1998, by filing an application under Order 38 rule 5 C. P. C. The suit was decreed for a sum of Rs. 68,900/ -. In E. P. No. 60 of 1999 filed by the petitioner, an application under rule 58 of Order 21 C. P. C. was filed by the 1 st respondent, objecting to the attachment of the suit schedule property. She is the daughter of the sole defendant i. e. , the 2nd respondent herein. She pleaded that the property in question was gifted to her at the time of the marriage, and that she is in possession and enjoyment of the same. The claim put forward by the 1st respondent was accepted by the executing Court through order dated 30-3-2001, and the attachment against the property in question was raised.

( 4 ) AGGRIEVED by the order passed in E. A. No. 51 of 2000, the petitioner presented an appeal under Section 104 read with order 43 Rule 1 C. P. C. , before the Court of senior Civil Judge, Miryalaguda. Placing reliance upon the judgment rendered by a learned single Judge of this Court in Ushasri agro Agencies (Chit Funds) v. Giridhar Auto finance (P) Limited, the lower appellate court returned the appeal as not maintainable. Challenging the same, the petitioner filed the present revision.

( 5 ) THE question as to whether an order passed under Rule 58 (3) of Order 21 c. P. C. , (hereinafter, reference Rule 58 be taken as Rule 58 of Order 21) is appealable under Section 96 or 104 C. P. C. , fell for consideration before a Division Bench of this court in Nookaraju s case (supra ). It was held therein that an order passed under rule 58 (3), cannot be equated to a decree and thereby, an appeal under Section 104, and not the one under Section 96, can be maintained. In Ushasri Agro Agencies (Chit funds) v. Giridhar Auto Finance (P) Limited (supra), a learned single Judge of this court took a totally different view and held that against the order passed under rule 58 (3), only an appeal under Sec. 96, has to be filed. However, the attention of the learned single Judge was not drawn to the judgment of a Division Bench in Nookaraju s case (supra ). In view of these developments, when the C. R. P. came up for admission, it was referred to a Division bench, which in turn, has framed the question referred to above.

( 6 ) LEARNED counsel for the petitioner sri P. Prabhakar Rao, submits that the order passed by an executing Court in a claim petition filed under Rule 58 is not brought within the fold of a definition of decree under section 2 (2) of C. P. C. and in that view of the matter, it cannot be treated as a decree. He submits that it is only a decree that is appealable under Section 96 and the outcome of adjudication under Rule 58, being an order, is appealable only under section 104 C. P. C. He contends that the fact that certain characteristics of a decree are attributed to an order passed under rule 58 (3), for limited purposes, does not transform it into a decree. He also stresses upon the significance of omission of Sec. 47 from the definition of a decree through c. P. C. (Amendment) Act, 1976 (Act 1/76 ). He contends that once a decree emerges out of a suit, a furth

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