(1.) This case has come up before this Full Bench on a reference by a Division Bench consisting of Balasubramanyan, J. (as he then was) and one among us (Abdul Gafoor, J.) finding conflict of views expressed by two Division Benches of this Court, as to the maintainability of appeal under S.5(ii) of the Kerala High Court Act, 1958, in Padmanabhan v. Shriram Chits & Investments (P) Ltd., 1995 (2) KLT 61 and in Manoj v. Infant Jesus Church, 1999 (3) KLT 521 . The question of law to be answered in this case is whether Letters Patent Appeal under S.5(ii) of the Kerala High Court Act, 1958 will lie from the Judgment of a Single Judge in a appeal against an Order under O.21 R.100 of the Code of Civil Procedure, 1908 passed by a court executing a decree.
(2.) The appellant filed an application E.A. No. 299/98 in O.S. No. 54/89 objecting to the delivery of the property in favour of the first respondent, decree holder, in execution of a decree in the said suit. It was an application under O.21 R.99 of the Code of Civil Procedure. That application was dismissed as per Order, dated 23rd June 1999 by the Court of Subordinate Judge, Kottarakkara. That Order was challenged by the appellant in EFA No. 21/99. It was dismissed by a learned Single Judge of this Court. Thereupon, he attempts a Letters Patent Appeal under S.5(ii) of the Kerala High Court Act. Is it maintainable That is the question before us.
(3.) S.5 of the Kerala High Court Act, 1958 reads as under: