Orders passed under Rules 98 and 100 of Order 21 of the Code of Civil Procedure, which have the force of decrees, should be classified as appeals from orders and are subject to the same conditions as to appeal or otherwise as if they were decrees.

Mookerjee, J.

Prabir Kumar Sets, the respondents herein, has obtained a decree for eviction in Ejectment Suit No. 892 of 1977 in the City Civil Court at Calcutta against Smt. Anadi Devi Agarwalla. The respondent put the said decree into execution. According to the report of the Bailif, the present appellant had resisted the execution of the said decree claiming to be a sub-tenant under the judgment-debtor. Thereupon, the decree-holder respondent made an application in the executing Court under Order 21, Rule 97 of the Code for execution of the writ of delivery of possession with police help. The present applicant had opposed the said application claiming to be a sub-tenant of the suit premises from long before the year 1956. The learned Judge, 4th Bench, City Civil Court at Calcutta by his judgment and decree under appeal allowed the Misc. Case under Order 21, Rule 97 of the Code and directed the decree holder to get possession of the suit premises through police help. The appellant, being aggrieved, by the said order, presented this Memorandum of Appeal which has been described as an Appeal from Original Decree. The appellant has been ad-valorem court fees upon the Memorandum of Appeal which has been valued at Rs. 3,000/-.

2. The Stamp Reporter reported that the Memorandum of Appeal should be classified as "Appeal from Order". Mr. Roy Chowdhury, learned advocate for the petitioner, has disputed the correctness of the said report and has submitted that the Memorandum of Appeal has been properly classified as one from original decree.

3. Rule 103 of Order 21 of the Code of Civil Procedure has been amended by Code of Civil Procedure (Amendment) Act, 1976, (Act 104 of 1976). The said rule now provides "Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree".

4. Three points arise for consideration : (1) whether an appeal against an order under Rule 98 or Rule 100 of Order 21 of the Code should be classified as an appeal from decree or as an appeal from order, (2) whether such a Memorandum of Appeal should hear fixed court-fee stamps under Schedule II, Rule 11 of the West Bengal Court Fees Act or ad-valorem court fees stamps under Schedule I of the said Act and (3) whether the appeal should be placed for healing under Order 41, Rule 11 of the Code of Civil Procedure.

5. The learned advocates for both parties have made elaborate submissions and, therefore, it would be necessary for us to discuss the above points at some length. Decisions of the court may consist either of decrees or orders. The said two expressions have been defined respectively in clauses (2) and (14) of Section 2 of the Civil Procedure Code, 1908. Said definition of the expression "decree" in section 2(2) has two parts. The first part indicates that for considering a decision as a decree the following conditions should be fulfilled :

(i) formal expression of

(ii) adjudication

(iii) in a suit

(iv) which conclusively determines,

(v) rights of the parties or any of them.

Said section 2(2) secondly mentions that the orders which may not satisfy all the above conditions but still are deemed to be decrees. In other words by legal fiction orders rejecting the plaint under Order 6, Rule 11 of the Code and orders for restitution under section 144 of the Code are treated as decrees. Before amendment made by the Civil Procedure (Amendment) Act, 1976, orders under section 47 of the Code were also deemed under Sec. 2(2) to be decrees. But After the said amendment the orders under section 47 are no longer so. The section 96(1) of the Code has laid down that save where otherwise expressly provided in the body of the 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 authorised to hear appeals from the decisions of such cou