An Execution Court's order under Order 21 Rule 35 is not a decree and is not appealable; the right to appeal is a statutory right defined by the CPC, excluding certain orders like those under Section 47.

JUDGMENT :

M.A. ABDUL HAKHIM, J.

1. The appellants are the respondents in Review Petition No.1/2013 in C.M.A.No.6/2010 on the files of the Third Additional District Court, Ernakulam. As per the impugned order dated 04.04.2015, the District Court allowed the Review Petition setting aside its Order dated 27.02.2013 in C.M.A.No.6/2010 in which it is held that the C.M.A. is not maintainable and further directed to close the C.M.A and re-register the C.M.A. as Regular Appeal under Section 96 of the Code of Civil Procedure.

2. The short facts necessary for the disposal of this Appeal alone are stated: O.S.No.562/1957 was filed for the cancellation of a document and recovery of possession of the plaint schedule property. The said suit was decreed. The defendants filed an Appeal before the Appellate Court as A.S.No.170/1967. During the pendency of the Appeal, the defendants 2 & 3, who were the appellants therein, died and their legal heirs were impleaded in the Appeal. The Appeal was dismissed confirming the judgment and decree of the Trial Court. The plaintiffs/decree holders put the decree in execution by filing E.P.No.367/1981. Two of the legal heirs of the defendants 2 and 3, who were the parties in A.S.No.170/1967, were not made parties in the E.P. One of such legal heirs got himself impleaded as additional respondent in the E.P. The other legal heir, namely, M.K. Divakaran, filed E.A.No.579/2009 seeking permission to file an Objection to the E.P. E.A.No.579/2009 was allowed. The property was ordered to be delivered on 27.10.2009. Then he obstructed delivery and filed another E.A.No.591/2009 under Order 21 Rule 97 CPC. He raised two contentions in E.A.No.591/2009. First was that the decree is sought to be executed without impleading him in the Execution Petition. Second is that he is having an independent right over the plaint schedule property. The Execution Court dismissed E.A.No.591/2009 as per the order dated 03.11.2009. The petitioner in E.A.No.591/2009 filed C.M.A.No.6/2010 before the Appellate Court. The Appellate Court dismissed the said C.M.A as per the order dated 27.02.2013 holding that CPC does not allow a Civil Miscellaneous Appeal against an order passed by the Execution Court under Order XX1 Rule 35 C.P.C. Thereafter, the petitioner in E.A.No.591/2009 filed R.P.No.1/2013 and the Appellate Court passed the impugned order allowing the Review Petition. In the impugned order, the Appellate Court relied on the decision of the Hon’ble Supreme Court in Barkat Ali and Another v. Badri Narain (D) by LRs. AIR 2008 SC 1272 and held that an appeal against an Order XX1 Rule 35 is maintainable. It is also held that in view of the said ruling, the order passed in an Execution Petition amounts to a decree and the same is appealable. The further finding is that the office ought to have registered the Appeal as a Regular Appeal filed under Section 96 CPC instead of registering the same as C.M.A. On account of the aforesaid reasons, it is found that there is an error apparent on the face of the order passed in C.M.A. The order in C.M.A was set aside and the C.M.A is directed to be re-registered as a Regular Appeal.

3. I heard the learned counsel for the appellants, Sri. K.V. Jayachandran, the learned counsel for the respondents 2 to 4, Smt. P.P. Stella and the learned counsel for the 5^th respondent, Smt. Savitha G.

4. Since the learned counsel for respondents 2 to 4 raised a preliminary objection as to the maintainability of this Appeal that, as on the date of the appeal, the appellants did not have a subsisting interest in the plaint schedule property, I shall deal with the said contention first. The learned counse