R.AHMED BASHA Vs. K.BALASUBRAMANI

JUDGEMENT

(1.) 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 Sec. 96 of the Code of Civil Procedure and not as miscellaneous appeals under Sec. 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. Sec. 2(2) of the Code which defines a decree reads as follows:

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