Y. BHASKAR RAO, J.

( 1 ) THIS Miscellaneous Appeal is filed against an order passed in an Execution Application filed under Order 21, Rule 58 (1) of the Civil Procedure Code by the appellant herein holding that he has not established his claim over the petition schedule property.

( 2 ) AT this inception stage, the simple question that arises for our consideration in this matter is, whether it is a regular Appeal or a miscellaneous Appeal that lies against an order passed after adjudication in a claim petition filed under Order 21, Rule 58 of the Civil Procedure Code as a manned in 1976.

( 3 ) IN the Court of the Subordinate Judge, Pithapuram, during the course of Execution proceedings, a petition was filed under Order 21, Rule 58 of the Civil Procedure Code claiming that the property under attachment belongs to the claimant/appellant and not to the Judgment-debtor. That claim petition was rejected on merits holding that the appellant did not establish his claim over the property in question.

( 4 ) THE learned Counsel Sri Durga Prasada Rao appearing for the appellant contended that the order impugned was passed under Order 21, Rule 58 (3) of the Civil Procedure Code, as amended, that it is an appealable order , not being in the nature of an original decree envisaged by Section 96 of the Civil Procedure Code and therefore, he has rightly filed the miscellaneous Appeal . He also contended that there is no obligation to file a regular appeal under Section 96 of the Civil Procedure Code in as much as the order under appeal is not in the nature of a original decree. He further contended that under the unamended Civil Procedure Code, the decision rendered after adjudication in a claim petition filed under Order 21, Rule 58 of the Code was final and the aggrieved party had to file a suit in the light of Order 21, Rule 63 (unamended) of the Civil Procedure Code; whereas after the amendment to the Civil Procedure Code in 1976, there is a change in the language of Order 21, Rules 58 and 59 of the Code and in that not only Rules 60 to 63 thereof are omitted, but the order made under Order 21, Rule 58 (3) of the unamended Code is/also rendered to be one in the nature of. appealable order and therefore, only a miscellaneous Appeal lies against such an order and not a regular appeal .

( 5 ) THE learned Government Pleader for Revenue on the other hand, contended that after the amendment to the Civil Procedure Code, Order 21, Rule 58 (4) provides that the order made on a claim petition shall have the same force and be subject to the same conditions as to appeal or otherwise as if it Were a decree and therefore when the Legislature has given the status of decree to such an order and when the adjudication made is with regard to the right, title and interest of the parties, after permitting them to let in evidence, the proceedings are original in nature and accordingly the order is to be deemed to be a decree permitting only a regular appeal against such a decree under Section 96 of amended Civil Procedure Code, but not a Miscellaneous appeal.

( 6 ) SINCE the question involved in this matter is purely one of law, we are not adverting to the detailed facts involved in the Case.

( 7 ) AT the outset, to test the nature of the impugned order, we shall advert to the definition of "decree" provided under Section 2 (2) of the Civil Procedure Code as it stood before amendment : " "decree" means the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation : A decree is pr

Click Here to Read the rest of this document