Devinder Gupta, C.J.
1. A Division Bench of this Court expressed the view that the judgment in B. Noorkaraju v. M.S.N. Charities, : AIR1994AP334 , needs reconsideration. It related to the interpretation of Clause (4) of Rule 58 of Order XXI, CPC. The question was framed as under
'Whether, against an order passed under Order XXI, Rule 58 of the Code in respect of a claim or objection to the attachment of property, a regular appeal would lie as an appeal against the decree, or, a Miscellaneous Appeal against the order?'
2. On a reference having been made, the matter is heard by this Full Bench, The facts, which gave rise to the filing of the CRP, may briefly be stated as under :
Petitioner filed O.S. No. 1 of 1998 against the 2nd respondent in the Court of Junior Civil Judge, Hazurnargar, for recovery of certain amount. He obtained an order of attachment before judgment dated 21.1.1998, by filing an application under Order XXXVIII, Rule 5, CPC. The suit was decreed for a sum of Rs. 68,900/-. In EP No. 60 of 1999 filed by the petitioner, an' application under Rule 58 of Order XXI, CPC was filed by the 1st respondent, objecting to the attachment of the suit schedule property. She is the daughter of the sole defendant Le. the 2nd respondent herein. She pleaded that the property in question was gifted to her at the time of the marriage.and that she is in possession and enjoyment of the same. The claim put forward by the 1st respondent was accepted by the Executing Court through order dated 30.3.2001, and the attachment against the property in question was raised.
3. Aggrieved by the order passed in EA No. 51 of 2000, the petitioner presented an appeal under Section 104 read with Order XLIII, Rule I, CPC, before the Court of Senior Civil Judge, Miryalaguda. Placing reliance upon the judgment rendered by a learned Single Judge of this Court in Ushasri Agro Agencies (Chit Funds) v. Giridhar Auto Finance (P) Limited, : 2003(2)ALD370 , the lower Appellate Court returned the appeal as not maintainable. Challenging the same, the petitioner filed the present revision.
4. The question as to whether an order passed under Rule 58 (3) of Order XXI, CPC, (hereinafter, reference Rule 58 by taken as Rule 58 of Order XXI) is appealable under Section 96 or 104, CPC, fell for consideration before a Division Bench of this Court in Nookaraju's case (supra). It was held therein that an order passed under Rule 58 (3), cannot be equated to a decree and thereby, an appeal under Section 104, and not the one under Section 96, can be maintained. In Ushasri Agro Agenchies (Chit Funds) v. Giridhar Auto Finance (P) Limited, (supra), a learned Single Judge of this Court took a totally different view and held that against the order passed under Rule 58 (3), only an appeal under Section 96, has to be filed. However, the attention of the learned Single Judge was not drawn to the notice of a Division Bench in Nookaraju's case (supra). In view of these developments, when the CRP came up for admission, it was referred to a Division Bench, which in turn, has framed the question referred to above.
5. Learned Counsel for the petitioner Sri P. Prabhakar Rao, submits that the order passed by an Executing Court in a claim petition filed under Rule 58 is not brought within the fold a definition of decree under Section 2(2) of CPC, and in that view of the matter, it cannot be treated as a decree. Me submits that it is only a decree that is appealable under Section 96 and the outcome of adjudication under Rule 58, being an order, is appealable only under Section 104, CPC. He contends that the fact that certain characteristics of a decree are attributed to an order passed under Rule 58 (3), for limited purposes, does to transfer it into a decree. He also stresses upon the significance of omission of Section 47 from the definition of a decree though CPC (Amendment) Act, 1976 (Act 1 of 1976). He contends that once a decree emerges out of a suit, a further order passed in the execution proceedings. Cannot be treated as a decree. He places reliance upon several judgments rendered by this Court as well as other High Courts, in support of his contention that an appeal under Section 104 read with Order XLIII, Rule 1, C PC, is maintainable against an order passed in an application filed under Rule 58.
6. Learned counsel also submits that in case such orders are to be treated as decreqs, a party aggrieved thereby, would be burdened with payment of Court fee on the entire suit claim. As an alternative sub-mission, he contends that, if for any reason, the appeals against such orders are to be filed only under Section 96, the Court fee payable thereon shall be the one under Article 11(i) of Schedule II of the AP Court fees and Suits Valuation Act, (for short the 'Court Fee Act') read with Section 48 of CPC.
7. Respondents were served with notice. They have not chosen to enter appearance. Having regard to the importance of the matter, this Court requested Sri Challa Seetaramaiah, Learned senior Counsel, to assist this Court, as amicus curiae. He acceded to the request and extended valuable assistance to the Court.
8. Learned Senior Counsel submits that prior to the amendment of CPC, 1976, the claims made by 3rd parties against orders of attachment were required to be dealt with under Rule 63 of Order XXI, and the remedy of a party aggrieved by such order was to file a suit. He contends that with a view to avoid multiplicity of proceedings, CPC was amended in 1976, providing inter alia, for adjudication of the claims presented by 3rd parties against orders of attachment, in the same manner, as suits, and for that reason, the outcome of such adjudication was conferred the status of a decree. After referring to the scheme contained in Rule 58, as it stands now, learned Senior Counsel submits that the predominant object of equating an order passed under Rule 58 with a decree, was to provided fore an appeal under Section 96. He points out that once the characteristics of a decree are ascribed to such an order, the imagination or fiction cannot stamp halfway, when it comes to the question of ascertaining the provision for appeal. Placing reliance upon several judgments rendered by Supreme Court as well as various High Courts, learned senior Counsel submits that the object of the Parliament in equating the order under Rule 58 (3) to a decree is clear and it is impermissible to treat it different from a decree. According to him, the scheme of Section 104, or Order XLIII, Rule 1, does not permits an appeal . under those provisions against such orders.
9. As regards the Court fee payable on appeals against such orders, learned Senior counsel submits that Section 38 of the Court Fee Act is the relevant provision.
10. The answer to the question framed for adjudication in the CRP depends upon the interpretation, which is to be placed on sub-rule (4) of Rule 58 of Order XXI of CPC. Before CPC was amended in the year 1976, the procedure for adjudication of claims, in relation to attachment of properties made by persons, who are not parties to the proceedings was governed by Rules 58 to 63 of Order XXI. It would be sufficient, if reference is made to Rule 63. It read as under :
Rule 63.-Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to established the right which the claims to the property in dispute but, subject to the result of such suit, if any the order shall be conclusive.'
11. To the same effect was Rule 103, in relation to delivery of possession. A party aggrieved by an order passed under Rule 63 or 103,had to file a suit to establish his claim. In its Fourteenth and Twenty Seventh Reports, the Law commission identified this as a factor, giving rise to multiplicity of proceedings. With a view to remedy the situation, it pointed out .that such claims be finally adjudicated in the same suit. After taking into account the observations made in the Fourteenth Report, the law Commission made the following recommendation in its Twenty Seventh Report :
'Para 41.-Delay in execution proceedings is mainly due to certain dilatory tactics adopted by judgment debtors. When in execution proceeding any property is attached, there is generally a claim filed under Order XXI, Rule 58. If this claim is rejected, a suit is filed under Rule 63 of that order. If the attachment of the property is finally up held, there are obstruction proceedings under Rule 97, followed by a suit under Rule 103. The fourteenth report, contains recommendation that claim proceedings or obstruction proceedings should be finally determined by the execution Court, and that where they are so determined, there should be no right of suit. This recommendation has been made with a view to eliminating delay in execution proceedings. Unfortunately, we have no statistics to indicate in what percentage of cases a suit is filed under Rule 63 or Rule 103. We are, however, in agreement with the recommendation in the fourteenth report, which is based upon certain evidence recorded by the Commission.'
12. It was in this context, that the amendment was carried out, and present Rule 58 came to be enacted. It is beneficial to extract the Rule, to appreciate the scheme provided for in it.
'Rule 58. Adjudication of claims to, or objections to attachment of property :- (1) Where any claim is preferred to, or any abjection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained :
Provided that no such claim or objection shall be entertained-
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination.-
(a) allow the claim or objection and release the property for attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge of other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
4. Where any claim or objection has been adjudicated upon under this rule, 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 as decree.
(5) Where a claim or an objection is preferred and the Court, under the provision to sub-rule (1), refuses to entertain it. The party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.'
13. In relation to delivery of possession; the gist of the amendment is reflected in Rules 101 and 103 of Order XXI. A perusal of Rule 58 discloses that all questions, including those relating to right, title or interest in the attached property, are required to be decided by the same Court and not by separate suit. Indirectly, an application filed under Rule 58 is conferred the status of a suit. The necessity to file a suit, in relation to such claims, would arise, if only the executing Court refuses to entertain the claims or objections. The grounds for not entertaining the claims or objections are confined to those enumerated under proviso to sub-rule (1) of Rule 58. The nature of disposal to be given to the claims or objections, filed under sub-rule (1), is indicated'in sub-rule (3), under sub-rule (4), the order passed on such claims or objections, is to have the same force and be subject to the same conditions as if it were a decree, for the purpose of preferring the appeal and other related matters. The intention of the legislature in extending the force of a decree, to an order passed under Rule 58, particularly in the context of appeal, is very clear.
14. One of the contentions advanced on behalf of the petitioner is that, if the Parliament were of the view, that an appeal under Section 96, CPC provided against the order passed under Rule 58, the easiest thing for it would have been to amend Section 2(2), CPC to bring such orders within the fold of the definition of decree. In this context, it needs to be observed that prior to 1976, the definition of a decree was wide enough to include in it, the orders passed under Section 47. In fact, every order that is passed by a executing Court in an application filed under Section 47 was a decree and appealable under Section 96. The remedy of filing of suits against orders passed in applications filed under Rules 58, 98, 99 or 101, as they stood before 1976, was on account of the mandate, contained in Rules 63 and 103. With a view to streamline the execution proceeding, the definition of a decree was narrowed down by removing the orders passed under Section 47. Such blanket exclusion was to have resulted in rendering none of the orders passed under Section 47, which are in relation to execution, appealable. The importance of the orders passed under amended Rules 58, 98 and 100, was recognized and the characteristics of a decree were attached to them by conferring the status of decree.
15. It is true that one of the methods to ascribe the attributes of a decree to an order passed under Rule 58, was by amending the definition suitably. However, the process of definition, in the field of law, is fraught with its own difficulties. The legislature has to maintain perfect balance between over simplification and undue elaboration, while defining a term. Lack of precision in the definition of a term is prone to give rise to several complication. While over simplification is likely to result in ex-clusion of certain categories or phenomenon outside the defined term, though they are part of it, undue elaboration is prone to bring into the fold of definition, certain thighs, which are clearly outside its scope, lack of precision or undue elaboration is sure 'to take a definition, closer to description. An important principle in the filed of legislation is 'never to enact under the guise of definition' (see Craies on statute law 7th Edn. P. 212). Even while respecting this principle, the legislature can bring certain events, within the scope of a definition, by making a cross reference, in the body of the enactment.
16. Where the legislature provides for inclusion of certain other categories of events or phenomenon in the fold of the definition of a term, a legal fiction operates and the included events or phenomenon partake the character of the defined term, for all the purposes'that are intended. In fact, they merge into the original definition and loose their separate identity. It would be impermissible to treat them, in any way different from the defined term. The legal fiction has to be taken to its logical end and it cannot be stopped at an intermediary stage. It would be beneficial to refer to the oft quoted passage from the judgment of Lord Asquith in East End Dwelling Co. Ltd. v. Finshury Borough Council, (1951) 2 All ER 587, which reads as under :
'If you are bidden to treat an imaginary State of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative State of affairs had in fact existed, must inevitably have ilowed from or accompanied it. The statute says that you must imagine a certain State affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that State of affairs.'
17. This principle is followed by the Supreme Court and other High Courts of our country. In Dargah Committee, Ajmer v. State of Rajasthan, : [1962]2SCR265 , the Supreme Court observed as under :
'If by the fiction introduced by Section 222(4) (Ajmer Merwara Municipalities Regulation, 1925), the amount in question is to be deemed as if it were a tax, it is obvious that full effect must be given to this legal fiction; and in consequence, just as a result of the said fiction the recovery procedure prescribed by Section 234 (for taxes) becomes available to the committee so would the right of making an appeal prescribed by Section 93 (1) be available to the appellant.'
18. In I.T. Commissioner v. S. Teja Singh, : [1959]35ITR408(SC) , Section 18A of the Income Tax Act, fell for consideration. Clause (b) thereof provided that as assessee shall be deemed to have deliberately furnished inaccurate particulars, or has failed to furnish the return of his total income, if in the opinion of the Income Tax Officer he has furnished inaccurate estimates or failed to comply with sub-section (9) of Section 18-A consequences provided for under Section 28, were to follow on the basis of this fiction. The Supreme Court repelled the contention that the consequences provided for under Section 28, for violation of specific provisos, cannot be extended to deemed violations. It was observed as under :
'Para 5...........In other words, by a legal fiction the failure to send an estimate of the tax under Section 18-A (3) is treated as a failure to furnish of income under Section 22. It is a necessary implication of this fiction that the estimate of tax on the income to be sub-mitted under.Section 18-A (3) is, in fact, different from the o return to be furnished under Section 22, and to appreciate the full significance of this fiction, it is necessary to examine what the distinction is. Under Section 3 of the Act, the tax is payable on the income of the previous year. A statement of that income can be furnished only after that year ends, and Section 22 enacts provisions as to when it is to be furnished in the assessment year. Sub-sections (1) and (2) provide for notices being given and the assessee is required to file his statement of income within the period provided therein, and it is this statement that is termed 'return.' Section 18-A (3), however, relates to the sending of a statement of tax on the income of the accounting year before the 15th day of March of that year itself, and that statement is termed not a return but an estimate, and quite rightly because in he very nature of it, it can only be that. A person who sends and estimate under Section 18-A (3) has also to send a return of his income for the accounting year under Section 22, and sub-Sections (4) and (5) of Section 18-A provide for adjustment of advance tax paid under Section 18-A (3) towards the tax as finally computed under Section 23. Thus, there is a clear distinction between a return of income under Section 22, which can only be during the year of assessment and an estimate of tax on income under Section 18-A (3), which can only be in the year of account.'
6........Therefore, the fiction that the failure to send an estimate is to be deemed to be a failure to send a return necessarily involves the fiction that notice had been issued under Section 22, and that had not been complied with. It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate..........'
19. Alter referring to the observation of Lord Asquith, extracted above, the Supreme Court concluded as under ;
'.........The fiction under Section 18-A (9) (b) therefore that failure to send an estimate under Section 18-A (3) is to be deemed to be. a failure to send a return must mean that all those facts on which alone there could be a failure to send the return must be deemed to exist, and it must accordingly be taken that by reason of this fiction, the notices required to be given under Section 22 must be deemed to have been given, and in that view, Section 28 would apply on its own terms.'
20. In Shiv Shakti Co-operative Housing Society v. Swaraj Developers, (2003) 7 SCC 659, the Supreme Court had reiterated the settled principle of law, that a statute is a determinative factor of the legislative intent. It was also observed that the Court cannot read anything into a statute, or a statutory provision, which is plain and unambiguous. Therefore, once the legislative intention is clear to the effect that an order passed under Rule 58, has to be conferred the status of a decree, particularly, in the context of an appeal against it, it is impermissible to draw a distinction between the two.
21. A Full Bench of this Court in Pallamraddy Masthan Reddy v. Nellore Finance Corporation, : AIR1993AP297 (FB), held that the claim or objection made under Rule 58 of Order XXI, is almost a suit, Justice P. Venkatarama Reddi, as he then was, speaking for the Bench, held as under :
'Para 10................The scope of enquiry under Rule 58 has been amplified so as to cover the questions of right and title to the property. Instead of driving the parties to a separate* suit, the amendment provides for the adjudication of the claim on all aspects including the right, title and interest in and over the property. The necessary concomitant of this change is that a claim petition is decided virtually as if it is a suit for title and possession. When there is such comprehensive adjudication under the amended Rule 58, the filing of another suit is, in .the any nature of things, superfluous and the suit is therefore necessarily excluded. At the same time, against the order passed under Rule 58, an appeal is provided for just as an appeal could be filed against the decree in a suit.........'
22. In Nookarajus case (supra), a Division Bench of this Court treated the order passed under Rule 58, as a deemed decree, in contradistinction to a decree, defined under Section 2(2). The fact that the order passed under Rule 58 was conferred the same force as of a decree, was very much recognized. Reference was made to the judgments of various High Courts. However, it was held that the relevant provision for filing appeal against such orders is Section 104 and not Section 96. In arriving at this conclusion, extensive reference was made to the judgment of this Court in Biksha Reddy v. G. Venuka Bai, 1982 (92) An. WR 181.
23. The dispute in Biksha Reddy's case (supra) was only about the Court fee to be paid in appeal filed against an order passed under Rule 97 of Order XXI. After discussing the relevant provisions of Court Fee Act, a learned Single Judge of this Court held that the Court fee has to be determined with reference to Article 3 (1) of Schedule II of the Court Fee Act. Reference to Rule 58 of Order XXI was made only as a provision, comparable to Rules 97 to 103 of Order XXI. There was no occasion to determine the provision, or forum of appeal against such orders. The learned Judge in fact, made it abundantly clear that he did not adjudicate upon the nature of appeals to be preferred against the order under revision, before him. Para 12 of the judgment reads as under :
'Here it should not be understood that I have decided the other question i.e. whether a Civil Miscellaneous appeal or a Regular Appeal lies against such an order. It was not argued before me by the counsel for the respondent.'
24. The Division Bench did notice this fact and observed that the judgment in Biksha Reddy's case (supra), did not relate to forum or provision for appeal. However, after referring to this and the judgment of the Madras High Court in Vasanthi, Mrs. v. K. Karuppanna Gounder, 1988 (2) Law Weekly 45, the Bench held as under :
'Therefore, though the issue as such did not arise in the above decision, still the line of reasoning leads to the conclusion that against an order made under Rule 58 (30, order XXI, only a miscellaneous Appeal lies and not a Regular Appeal, since the application made under Order XXI, Rule 58 (1) can in no way be treated as a regular suit. In the light of these two decisions and the different provisions of the Code referred to hereinbefore, we are of the firm opinion that the order made under Rule 58 (3) or Order XXI of the amended Code has only the status of 'deemed decree' and not a 'decree' by itself and that such orders are not covered by the definition under Section 2(2) namely of 'decree' so as to attract the provisions of Section 96 of the Civil Procedure Code and therefore, only a 'Miscellaneous appeal' lies against such 'order and not a 'Regular appeal.'
25. The attention of the Bench does not appeal .to have been drawn to the judgment of Full Bench in Pallamreddy Masthan Reddy's case (supra). In Avinash Chander v. Mohan Lai, , relied upon by the learned counsel for the petitioner, Division Bench of the Punjab and Haryana High Court had explained the purport of the Rule 58 and appealability of orders passed under Section 47, CPC, in the context of the amended definition of decree. As in Nookarajus case (supra), a distinction was maintained between a decree, as defined under Section 2(2), and orders having the force of a decree, namely, order passed under Rule 58 of Order XXI, in this case also. Notwithstanding the same, such orders are held to be appealable under Section 96. The same is evident from the following passage :
'.......Further, the order made on such determination is to have the same force as if it were a decree, but not being a decree itself. Furthermore, the order is subject to same conditions as to appeal or otherwise as if it were a decree without being a decree itself. And since the order is appealable as specifically provided in the rule, it is conditioned in the way and the manner as provided under Section 96, under which original decree are appealable.'
26. Though certain other discussion is undertaken in the judgment, it is not relevant for the purpose of this case. This decision, in a way suggests that the contention of the petitioner is not tenable. In Jose Thengumpillil v. Secretary, Peruvanthanam service Co-operative Bank Ltd., : AIR1997Ker261 , a Division Bench of the Kerala High Court disagreed with the judgment of this Court in Nookaraju's case (supra). It took the view that the legislative intent of conferring the status of a decree to the order passed under Rule 58 must be respected and such orders are appealable under Section 96 of CPC.
27. In B. Venkat Rao v. Subbaiah, : AIR1983AP166 , a Division Bench of this Court dealt with an order passed under Rule 58. The matter however arose in a totally different context. The petitioner there-in raised an objection to the attachment. Aggrieved by the rejection of his objections by the executing Court, he filed a civil miscellaneous appeal before an appellate Court under Section 104 read with Order XLIII, Rule 1, CBC. On dismissal of the appeal, he filed a revision before the High Court under Section 115, CPC. The issue before the Division Bench was, as to whether a revision was maintainable against such order. It was held that a revision is not maintainable, but a civil miscellaneous second appeal lies against such order. No provision, under which such miscellaneous second appeal can be maintained, is referred to. Further, the basis is stated as under :
'.........We are clearly of the opinion that in the absence of any prohibition for further appeal embodied in Order XXI, Rule 58, CPC, the party to the proceedings under Order XXI, Rule 58, CPC is clearly entitled to the further appeal under the Code viz, the second appeal. The matter having arisen in execution the appellant has to file a Civil Miscellaneous Second Appeal as it obtained before the amendment to Section 2(2), CPC. Accordingly we hold that the Civil Revision Petition is not maintainable as this Court cannot entertain the revision petition in view of the prohibition contained in Section 115(2) of the Civil Procedure Code, when an appeal lies to this Court. The remedy of the revision petitioner is to file an appeal. We accordingly permit him to convert the revision petition in to Civil Miscellaneous Second Appeal.........'
28. We are of the view that remedy of appeal.and more so second appeal is to be specifically provided by a statute and it cannot be inferred on the sole ground that it is not prohibited.
29. To appreciate as to whether the view taken by the Division Bench in Nookaraju's case (supra), conforms to the mechanism of appeals provided for under CPC, it is necessary to refer to the relevant provisions. CPC provides for two kinds of appeals from the adjudications under taken by Courts of the original jurisdiction, namely, appeals against decrees, and appeals against orders. The former are provided for under Section 96, and the latter under Section 104. Though the provisions are familiar, it is necessary to extract them, to appreciate their actual purport.
'Section 96. Appeals from original decree.-(1) Save where otherwise expressly provided in the body of this 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 authorized to hear appeals from the decisions of such court.
(2) An appeal may lie from an original decree passed ex-parte.
(3) No appeal shall lie from a decree passed by the court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed (ten thousand rupees).'
'Section 104. Order from which appeal lies. (1) An appeal shall lie from the following orders, and save as otherwise expressly, provided in the body of this Code or by any law for the time being in force, from no other orders :
[x x x ]
(ff) an order under Section 35-A;
(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;
(g)an order under Section 95;
(h) an order under any of the provision of this code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules :
Provided that no appeal shall lie against any order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.'
30. These two substantive provisions are supplemented by Orders XLI and XLIII, respectively of Schedule 1 of the CPC. Section 96 gets attracted only in such cases, where the subject-matter of the appeal is a decree. On the other hand, Section 104 provides for appeals against orders. Section 2(14) defines an order as formal expression of any decision of a Civil Court, which is not a decree, every order is not appealable. It is only such orders which fit into the various clauses of Section 104 and Order XLIII, Rule 1, that are appealable.
31. Once it emerges that an order passed under Rule 58 of Order XXI is conferred the status of a decree, in the particular context of appeal, Section 96 gets attracted. Section 96 does not enumerate the types of decrees that can fall into its fold. Once the outcome of adjudication partakes the character of a decree, it gains an entry into the realm of Section 96.The contention of the learned counsel for the petitioner that the appeals provided for under Section 96 are against original decrees and no other kinds of decrees is unacceptable. The work 'original' in the heading of Section 96 signifies the jurisdiction, i.e. original jurisdiction in contradistinction to appellate jurisdiction.
32. Section 104, on the other hand, is neither general, nor residuary in nature. It is only those orders, which answer the descriptions contained in its clauses, that are appealable under it. Section 104, as it stands now, provides for appeals against five categorites of orders. There is no dispute that an order under Rule 58 does not fall into Clauses (ff), (ffa), (g) and (h). An effort can certainly be made to bring it within the purview of Clause (i) of sub-section (1), since it is an order made under a rule. This effort would eertainly have been successful, had the clause been 'any order made under rules', without anything further. The subsequent part of the clause, which obviously refers to Order XLIII, CPC, restricts its scope. In none of the clauses contained in Rule 1 of Order XLIII, an order passed under Rule 58 of Order XXI, finds place.
33. Further, if for any reason, the expression 'an appeal expressly allowed by Rules' occurring in Clause (i), Section 104 can be taken as including Rule 58 of Order XXI in its fold, the fact that Rule 58 (4) directs that the order passed under sub-rule (3) shall have the same force of a decree, for the purpose of appeal cannot be ignored. On account of it, the order passed under Rule 58 of Order XXI stands physically lifted from the purview of Section 104, CPC. While right to file a suit is a common law remedy, right of appeal is one, which has to be specifically provided for by a statute. The procedure to be followed in filing the appeal as well as the forum to which it shall be presented, are to be specifically provided. This requirement becomes significant in the context of different kinds of remedies provided in the form of appeals and revisions, in the enactments like CPC. Each remedy has its own significance as well as limitations. The legislature is deemed to have taken the relevant factor into account, when it provides for a particular kind of remedy against the outcome of an adjudication, By the process of interpretation, such remedies can neither be restricted nor expanded.
34. When Section 96, CPC specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order XXI directs that the order passed under sub-rule (3) thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An inter-pretation to the contrary would have the effect of setting at naught, the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear mandate under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order XXI, CPC. Hence, there does not exist any justification to treat the same as different, in any way from decrees, at least in the context of deciding the forum and provision for appeal. The question as to what nomenclature is to be given to the appeals, needs to be dealt with by the High Court or the District Courts, on Administrative side. Hence, we are of the view that the judgment of this Court in Nookaraju's case (supra), does not lay the correct proposition of law. Once it is held that orders passed under Rule 58 (3) and Rules 98 and 100 of Order XXI, CPC, are appealable under Section 96, CPC, it is axiomatic that a second appeal is maintainable against the order passed in such appeals. Though this question is not referred to this Full Bench, it is dealt with, to put an end to the controversy and uncertainty.
35. A serious attempt is made by the learned counsel for the petitioner to persuade 'this Court to sustain the judgment in Nookaraju's case (supra), on the ground that requiring the parties aggrieved by the orders under Rule 58 of Order XXI may result in undue hardship, in the matter of payment of same Court fee as paid in the suit. He submits that if the appeals are to be filed under Section 96, CPC, Court fee may be permitted to be paid under Article 11(1) of Schedule II of the Court Fee Act.
36. Learned Senior Counsel submits that once it emerges that the order under Rule 58 is appealable under Section 96, the hardship caused on account of payment of Court fee is no ground to deviate from it. According to him, the relevant provision to determine the Court fee payable on' such appeals is Section 38 read with Section 49 of the Court Fee Act.
37. Section 38 of the Court Fee Act, stipulates the Court fee to be paid on suits to set aside the attachment. According to this provision, fee shall be computed on the amount, for which the property was attached, or l/4th of the market value of the attached property, whichever is less. learned Senior Counsel points out that since an objection under Rule 58 is equated to a suit, the fee stipulated under Section 38 has to be levied on such application and consequently, in an appeal filed against such orders, the same fee has to be levied under Section 49, Clause (i) of Article 11 of Schedule II reads as under :
'11. (i)Application for petition under Section 47 and order XXI, Rules 58 and 90 of the Code of Civil Procedure, 1908.'
(i) When filed in a Revenue Court or a District Munsiffs Court; One rupee.
(ii) When filed in a Subordinate Judge's Court or a District Court; Two rupees.
(iii) When filed in the High Court. Five rupees.'
38. An examination of the provisions reveals that while Article 11 (i) specifically and directly refers to the applications filed under Order XXI, Rule 58, Section 38 is a general provision in relation to suits to set aside the attachment. It is true that,an application filed under Rule 58 are to be decided in the same manner as a suit. However, they cannot be said to be suits referred to in Section 38. The occasion to file a suit to set aside the attachment under Section 38 would arise, if only the application filed under sub-rule (1) of Rule 58 is not entertained and returned. It is 'on such suit, that the Court fee is payable under Section 38. On the other hand, if the application is entertained, Clause 11 (i) of Schedule II gets straightaway attracted. Even otherwise, it is settled principle of law that where situations are governed by a specific and a general provision, the latter has to give way. Therefore, the Court fee payable for applications filed under Rule 58 of Order XXI shall be the one provided for under Clause 11 (i) of Schedule II. Consequently, the Court fee payable in an appeal filed against orders passed in such applications is the same as the one payable on the application, as provided for under Section 49 of the Act. The view expressed in Biksha Reddy's case (supra), on the Court fee payable on applications filed under Rule 97 of Order XXI, holds good for that category of applications as also the appeals arising out of them.
39. It may appear anomalous that the Court fee payable on an appeal filed under Section 96, CPC is so meager. However, it should not be forgotten that the endeavor of Parliament and the Law Commission was to ensure that the citizens are provided with remedies, which do not involve prohibitory costs, particularly in the matter of Court fee. The concern of the Law Commission, in this regard, is evident from para 42 of its Twenty Seventh Report.
'Para 42. We further recommend, that when an appeal is filed against any order made under Order XXI, Rule 58 or Order XXI, Rule 97, the Court-fee payable should be the same as is at present payable in the case of an appeal from an order under Section 47. The State Governments have, by notifications issued under the Court Fees Act, reduced the Court fee payable in respect of appeals against orders under Section 47. We recommend that the State Governments should issue a similar notification in respect of appeals against orders under Order XXI, Rule 58 et seq or Order XXI, Rule 97 et seq, as proposed to be revised.'
40. Hence, we are of the view that the Court fee payable in an appeal preferred against the order under Rule 58 of Order XXI shall be the one calculated in accordance with Clause 11 (i) of Schedule II of the Court Fee Act.
41. For the foregoing reasons, we hold that :
(a) Against the orders passed under Rule 58 (3) and Rules 98 and 100 of Order XXI, CPC regular appeals under Seetion 96 and not miscellaneous appeals* undej Section 104 read with Order XLIII, Rule 1, CPC are maintainable and that the judgment of this Court in Nookaraju's case (supra) does not represent the correct position of law.
(b) The Court fee payable on such appeals shall be the one calculated in accordance with Article 11 (i) or 3 (i) of Schedule II of Court Fees Act, as the case may be read with Section 49 of the AP' Court Fees and Suits Valuation Act.
(c) A second appeal under Section 100, CPC is maintainable against an order passed in an appeal, arising out of order passed under Rule 58 (3) or Rules 98 and 100 of Order XXI, CPC.
42. Consequently, the order under revision is upheld and the CRP is dismissed. The petitioner shall be entitled to avail the remedy of appeal under Section 96, CPC, against the order of the Executing Court, duly availing the benefit of Section 14 of the Limitation Act.
43. Before parting with the case, we place on record, our appreciation of the valuable assistance rendered by the learned Senior Counsel Sri Challa Seetaramaiah, as amicus curiae. Apart from making elaborate submissions, learned counsel has made available voluminous record by undertaking investigation of his own, and the same was of immense help in answering the reference.