An order passed under Order 21, Rule 98 of the Code of Civil Procedure is open to appeal under Order 43, Rule 1 (ja) of the Code of Civil Procedure.

BIJITENDRA MOHAN MITRA, J.

( 1 ) THE instant revisional application under Section 115 of the Code of Civil Procedure is taken up for contested hearing at the motion stage in presence of the Caveator being directed against order dated 21-12-1996 passed by the 3rd Court of Munsif at Srerampore in Title Execution Case No. 4 of 1996 on an application under Order 21, Rule 106 read with Section 151 of the Code of Civil Procedure. At the initial stage of the hearing of the instant application a preliminary objection was raised by the Opposite Party about the maintainability of the revisional application as, according to the contention of the Opposite Party, the same is open to appeal in terms of Order 43, Rule 1 (ja) of the Code of Civil Procedure. It has been contended that in terms of the provisions contained in Rule 106 of Order 21, if an order is made under sub-rule (2) of Rule 105 or the Opposite Party against whom an order is passed ex parte under sub-rule (3) of that Rule, one may apply to the Court to set aside the said order if the court is satisfied that there was sufficient cause for non appearance when the application was called on for hearing. It has also been brought to the notice of this Court that in a proceeding under Order 21, Rule 97 of the Code of Civil Procedure there was a resistance offered against the holder of the decree for possession of the immovable property and as such complaint is made about resistance. In terms of sub-rule (2) of Order 21, Rule 97 the Court shall proceed to adjudicate upon the application in accordance with the provisions and orders after adjudication can be passed in terms of Order 21, Rule 98 of the Code of Civil Procedure. Against such an order which is presumably one under Order 21, Rule 98 of the Code of Civil Procedure, an appeal has been filed and there an application for stay and/or injunction was moved which was refused. The point sought to be taken by the Opposite Party by placement of reliance on the decision in the case of Smt. Santilata Paul v. Nanda Kishore Mukherjee, reported in 1981 (1) CHN 401 : (AIR 1981 Cal 219) where the single Bench has held that in terms of the provision of Order 21, Rule 103 of the Code of Civil Procedure when an application has been adjudicated under Rule 98, such order will be treated as a decree and adjudication of an application under Rule 97 for determination of all questions envisaged by Rule 101, an order has to be passed by the Court according to the provisions of Rule 98. Since Rule 103 says that an adjudication of an order under Rule 98 or Rule 100 is appealable it must be held that such order passed in a proceeding under Order 21, Rule 97 and when it assumes a texture of Rule 98 after adjudication it must be held to be appealable. Rule 98 is wide enough to cover all cases of resistence or obstruction by a person including a transferee pendente lite. A further reference was made by Mr. Chakraborty, learned Advocate 8 appearing for the Opposite Party, to a reported decision of this Court reported in 1980 (2) CLJ 161, where the Division Bench of this Court in the case of Surajmal Jain v. Prabir Kumar Sett, held that the appeals preferred under orders made under Rule 98 or Rule 100 of Order 21 of the Code of Civil Procedure are to be classified as appeal from orders and they are required to be heard under Order 41, Rule 11 of the Code of Civil Procedure. It has been further observed in the said decision that this Court in the matters of practice and procedure have made no distinction between the orders which are deemed to be decrees under Section 2 (2) of the Code of Civil Procedure and the orders which have the force of decrees. To repel the contention so advanced by the Opposite Party, Mr. Sengupta, learned Advocate appearing for the petitioners, has tried to interpret in a streneous bid to give his own reading of Order 43, Rule 1, Clause (ja) of the Code of Civil Procedure. Mr. Sengupta has lead special stress on the proviso added therei

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