Court clarifies appeals from execution proceedings under Order 21 should be treated as regular appeals under Section 96, affirming established court practice and legislative intent regarding classification.

ORDER :

R. SUBRAMANIAN, J.

These cases have been placed before us upon a reference made by a learned Single Judge of this Court on the nomenclature to be assigned to 'Appeals' which arise out of certain orders passed in execution proceedings. The learned Single Judge felt compelled to seek an authoritative pronouncement on the issue since he was not in agreement with the views of two learned Single Judges of this Court expressed in Mrs.Vasanthi vs. K.Karuppana Gounder and others reported in (1998) 2 LW 45 and Sudhir V.Joshi vs. E.Kanniappan reported in (1997) 2 LW 660 . The learned Judge also made reference to the judgments of a Division Bench of the Kerala High Court in Anto Mamkoottam vs. Peruvanthanam Service Co-operative Bank reported in 1996 (2) KLT 962 , a Full Bench of the Andhra Pradesh High Court in Seetharam Reddy vs. Gunti Yashoda reported in AIR 2005 AP 95 and a judgment of the Punjab and Harayana High Court in Shamsher Singh vs. Zile Ram reported in 2007 SCC OnLine P & H 1024, in support of the view that appeals arising out of adjudications made under the provisions of Order 21 Rule 58, Order 21, Rules 97 to 100 should be treated as regular appeals under Section 96 of the Code of Civil Procedure and not as miscellaneous appeals under Section 104 read with Order 43 of the Code of Civil Procedure.

2. Before we proceed further, it would be advantageous to refer to certain provisions of the Code. Section 2(2) of the Code which defines a decree reads as follows:

""Decree" means the formal expression of an 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 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 preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.''

3. Section 96 of the Code provides for appeals against original decrees of Civil Courts and it reads as follows:

''96. Appeal from original decree:- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte .

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.'' (emphasis supplied)

4. Section 104 which provides for appeals against orders reads as follows:

”104. Orders from which appeal lies.-- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

(a) to (f) (Omitted by Arbitration Act, 1940;)

(ff) an order under section 35-A;

(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;

(g) an order