The main legal point established in the judgment is that orders passed under O. XXI R.58(3) are appealable under S.96 of the CPC treating such orders as deemed decrees.

Ramakrishnan, J.

These two unnumbered appeals are posted before us on a reference made by Balasubramanyan, J. The question posed before the learned Single Judge and referred for decision is whether the orders challenged in the two appeals have the force of decrees attracting an appeal under S.96 of the Code of Civil Procedure or whether they are merely orders conferring a right of appeal on the appellant under O. XLIII R.1 CPC. Being a question relating to the practice to be followed generally by the Courts in the matter of entertaining appeals, the learned Single Judge was of the view that there should not be any confusion on the question and as such it is not proper to refer the question to a Division Bench for an authoritative pronouncement on the question. Incidently, the learned judge has also pointed out in the order of reference the correctness of the decision reported in Alt v. Muhammed All 1995 (2) KLT225 = (ILR 1995 (3) Kerala 383). AS such it is necessary to consider the correctness of the said decision also.

2. The appeals filed are against the orders passed in two claim petitions, LA. No. 217(a) of 1994 in O.S. No. 341 of 1994 and I.A. No. 220(a) of 1994 in O.S. No. 342 of 1194 filed under O. XXI R.58 CPC for raising the attachment before judgments effected in the suits pending before the Sub Court, Pala. The claims were duly adjudicated upon in the manner provided for adjudication of claims to property attached in execution prescribed under O. XXI R.58 CPC and the other relevant provisions in that order in view of the provisions contained in O. XXXVIII R.8 CPC. As per the impugned order, the claim petitions have been allowed. Plaintiffs in the two suits have preferred these appeals. Taking note of the nature of the question posed, we have requested Sri. Thottathil B. Radhakrishnan to assist the Court as amicus curiae which request was readily accepted by the learned counsel.

3. In the office note, the office has taken the view that regular appeals have to be filed treating the orders passed as having the force of a decree as held in All v. Muhammedali (1995(2) KLT 225 = ILR 1995 (3) Ker. 383).

4. Learned senior counsel, Sri. S. Venkitasubramonia Iyer, has submitted that the impugned orders being orders passed under O. XXIR. 58(3) CPC, they can be treated only as orders appealable under the Rules as defined in the C.P.C. in contrast to the decrees passed by 'courts exercising original jurisdiction' as contemplated under S.96 CPC and, therefore, only a Civil Miscellaneous Appeal, as filed by him, is maintainable in law. Referring to the definition of the words 'decree' and 'order' contained in S.2(2) and 2(14) it was submitted that the Code has made a clear distinction between the two throughout the provisions contained therein. It was contended that even though an order passed under O. XXI R.58(3) is directed to be treated as one having 'the same force and subject to the same conditions as to appeal or otherwise as it were a decree' as per R.58(4), it cannot be equated to a decree as such. In other words, so long as the order can be treated only as one having the status of a decree and not a decree as such, no regular appeal can be filed against it under S.96 of the Code. In support of the above submissions, learned counsel for the appellants has strongly relied upon the decisions reported in Vasanthi, Mrs. v. K. Karuppanna Gounder (1988 (2) LW 45 (Mad.), B.Nookaraju v. M.S.N. Charities (AIR 1994 AP 334). As regards the decision of the learned Single Judge of this court in AH's case (supra) and relied upon by the office and the decision of the Andhra Pradesh High Court reported in S. VenkatRaov. C.Subbaiah (AIR 1983 AP 166) approved by the learned single judge in All's case (supra), learned counsel has sought to distinguish the same by stating that the point arising for consideration in the present case did not specifically arise for consideration in the said decisions. According to counsel, the only point