ANTO MAMKOOTTAM Vs. PERUVANTHANAM SERVICE CO OPERATIVE BANK

JUDGEMENT

(1.) 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.43 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. Incidentally, the learned Judge has also pointed out in the order of reference the correctness of the decision reported in Ali v. Muhammed Ali 1995 (2) KLT 225 ). 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, I.A. No. 217 (a) of 1994 in O.S. No. 341 of 1994 and LA. No. 220(a) of 1994 in O.S. No. 342 of 1194 filed under O.21 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.21 R.58 CPC and the other relevant provisions in that order in view of the provisions contained in O.38 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 Ali v. Muhammedali (1995 (2) KLT 225).