1. The petitioner is before this Court in this revision petition filed under Section 115 of the Civil Procedure Code (CPC for short), assailing the order dated 02.11.2016 passed by the II Addl. Civil Judge & JMFC Mangaluru, D.K. in Ex. Case No. 132/2016.

2. The respondent No. 2 herein has levied the execution petition in Ex. Case No. 132/2016 against the respondent No. 1 herein for execution of the decree passed in O.S. No. 330/2007. In the said proceedings the petitioner claiming right in respect of the property involved has filed an application under Order XXI Rule 97 to 101 read with Section 151 of CPC in obstruction, to resist the execution of the decree. In that regard, the petitioner herein has claimed to have a share in the decreed property. Reference in that regard was made to the suit filed by her in O.S. No. 339/2005 seeking for partition and separate possession which was decreed. Though the said decree was set aside in R.A. No. 127/2010, the matter is presently pending before this Court in R.S.A. No. 871/2016. In that view, it was contended that the decree passed in O.S. No. 330/2007 cannot be executed against the petitioner herein. The said application in I.A. No. 1 was opposed by respondent No. 2 herein as the decree holder. The Executing Court after considering the rival contentions has rejected the application in I.A. No. 1 through the impugned order dated 02.11.2016. That order is assailed in this revision petition.

3. The Registry at the outset while scrutinizing the revision petition papers has raised an objection relating to the maintainability of a Civil Revision Petition by taking note of an order dated 22.11.2010 passed by this Court in RFA No. 1969/2010 wherein it is held that in view of the provision contained in Order XXI Rule 103 of CPC, an appeal will lie in respect of an order passed on an application under Order XXI Rule 97 to 101 of CPC. When it was posted before this Court to consider the said office objection, this Court had kept open the question of maintainability, ordered notice to the respondents and granted the interim order. The respondent No. 2 on appearance has also raised the objection with regard to the maintainability. In that view, though the learned counsel for the parties have also addressed the arguments on the merits of the rival contentions, the question relating to the maintainability will have to be addressed at the outset, which is accordingly done herein-below.

4. This Court in RFA No. 1969/2010, through the order dated 22.11.2010 has held that Order XXI Rule 103 of CPC states that where any application has been adjudicated upon under Rule 98 or Rule 103, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. In that view, the order impugned therein was held to be a decree and held the appeal to be maintainable in that case.

5. The learned counsel for the petitioner would however contend that in the instant case, the Executing Court has not held any enquiry nor recorded any evidence to consider the application in the nature of a suit and as such the manner in which the application has been rejected will not amount to a decree so as to maintain an appeal under Section 96 of CPC. In order to support such contention, the learned counsel for the petitioner has relied on the decision of the Hon'ble Division Bench of this Court in the case of M/s. Paramound Industries vs. C.M. Malliga, ILR 1991 Kar 254 wherein it is held that having regard to the provisions contained in Rule 103 of Order 21, an order passed on adjudication under Rule 98 or Rule 100 of Order 21 of the Code shall have the same force and be subject to the same conditions as to an appeal, or otherwise, as if it were a decree. Since the proceeding ceases to be summary proceeding, it shall have to be tried as a suit. The Executing Court cannot proceed further in the execution without determining the objections filed by such person in