Concept of deemed decree

 Order 21, Rule 58(4) declared that the order made under sub-rule (3) "will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree". Thus, the order is declared to be a 'deemed decree' and not a 'decree' by itself.
the order made under Rule 58(3) of Order 21 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'.

Andhra High Court

B. Nookaraju vs M.S.N. Charities And Others on 22 February, 1994
Equivalent citations: AIR 1994 AP 334, 1994 (2) ALT 125
Author: Y B Rao
Bench: Y B Rao, J E Prasad
ORDER
Y. BHASKAR RAO, J.

1. This Miscellaneous Appeal is filed 'against an order passed in an Execution Application filed under Order 21, Rule 58 (1) of the Civil Procedure Code by the appellant herein holding that he has not established his claim over the petition schedule property. ''

2. At this inception stage, the simple question that arises for our consideration in this matter is, whether it is a 'regular Appeal or a 'Miscellaneous Appeal' that lies against an order passed after adjudication in a claim petition filed under Order 21, Rule 58 of the Civil Procedure Code as a manded in 1976.

3. In the Court of the Subordinate Judge, Pithapuram, during the course of Execution proceedings, a petition was filed under Order 21, Rule 58 of the Civil Procedure Code claiming that the property under attachment belongs to the claimant/appellant and not to the Judgment-debtor. That claim petition was rejected on merits holding that the appellant did not establish his claim over the property in question.

4. The learned Counsel Sri Durga Pra-sada Rao appearing for the appellant contended that the order impugned was passed under Order 21, Rule 58(3) of the Civil Procedure Code, as amended, that it is an appealable order', not being in the nature of an original decree' envisaged by Section 96 of the Civil Procedure Code and therefore, he has rightly filed the 'Miscellaneous Appeal'. He also contended that there is no obligation to file a 'regular appeal' under Section 96 of the Civil Procedure Code in as much as the order under appeal is not in the nature of a original decree. He further contended that under the unamended Civil Procedure Code, the decision rendered after adjudication in a claim petition filed under Order 21, Rule 58 of the Code was final and the aggrieved party had to file a suit in the light of Order 21, Rule 63 (unamended) of the Civil Procedure Code; whereas after the amendment to the Civil Procedure Code in 1976, there is a change in the language of Order 21, Rules 58 and 59 of the Code and in that not only Rules 60 to 63 thereof are omitted, but the 'order' made under Order 21, Rule 58 (3) of the unamended Code is/also rendered to be one in the nature of. 'Appealable order' and therefore, only a 'miscellaneous Appeal' lies against such an order and not a 'regular appeal'.

5. The learned Government Pleader for Revenue on the other hand, contended that after the amendment to the Civil Procedure Code, Order 21, Rule 58(4) provides that the order made on a claim petition 'shall have the same force and be subject to the' same conditions as to appeal or otherwise as if it Were a decree' and therefore when the Legislature has given the status of 'decree' to such an order and when the adjudication made is with regard to the right, title and interest of the parties, after permitting them to let in evidence, the proceedings are original in nature and accordingly the order is to be deemed to be a 'decree' permitting only a 'regular appeal' against such a decree under Section 96 of amended Civil Procedure Code, but not a Miscellaneous appeal.

6. Since the question involved in this matter is purely one of law, we are not adverting to the detailed facts involved in the Case.

7. At the outset, to test the nature of the impugned order, we shall advert to the definition of "decree" provided under Section 2(2) of the Civil Procedure Code as it stood before amendment :

" "Decree" means the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation : A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:"

As per the above definition, 'decree' included question decided under Section 47 or 144. Under the amended Civil Procedure Code, there is a slight departure in the definition of 'decree' and it runs as under :

" "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. -- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

The above definition of 'decree' under the amendment Civil Procedure Code has excluded orders of adjudication made under Section 47 of unamended Civil Procedure Code. Therefore, such orders after the amended Civil Procedure Code came into force, are no more 'decrees'. Further, the amended Civil Procedure Code brought in a change in the language of Order 21, Rules 58 and 59 also to some extent while omitting' completely Sections (Rules) 60 to 63 of unamended Civil Procedure Coder The claimant, whose claim petition was adjudicated under unamended Code, was provided with a remedy of a suit under Order 21, Rule 63 of the unamended Code, as stated supra. Under the amended Code, the remedy of filing a suit is not available to the claimant when there is adjudication of his claim on merits by the Executing Court.

8. Order 21 of amaded Civil Procedure Code deals with execution of decrees and orders. Under the Rules in Order 21 of amended Code, different types of attachments in execution of the decree are provided. Order 21, Rule 58 of the Code as amended, provides adjudication of claims and objections, which is relevant and important in deciding the question involved in this appeal and it is to the following effect :

"Rule 58 : Adjudication of claims to, or Objections to attachment of property:--

(1) Where any claim is preferred to, or any objection 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 :

Provide 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) Alt 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 in sub-rule (2), the Court shall, in accordance with such determination, --

(a) allow the claim or objection and release the property from 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, or 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 hereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the proviso 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."

9. Order 21, Rule 58(1) of amended Civil Procedure Code provides for making a 'claim petition or raising an objection and when a petition Is so made or an objection raised, the Court shall proceed to adjudicate the same in accordance with the provisions contained therein. However, where the claim is made after the attached property was sold or with unnecessary delay, the same will not be entertained, in which event as per Rule 58(5), the aggrieved party may institute a suit, since the petition was rejected at the inception stage. O.21, R. 58 (2) of amended Code directs that all questions (including question relating to right, title or interest in the property attached) shall be determined by the Court dealing with the claim or objection but not by a separate suit. Under Order 21, Rule 58(3) of amended Code, the Court is empowered either to allow or disallow the claim or objection or continue the attachment proceedings subject to mortgage, charge or other-interest in favour of any person or pass such orders as it deems fit. According to sub-rule (4) of Rule 58 of Order 21 of amended Code, where an order is passed under Rule 58(3), the said order will have the same force and subject to the same conditions as to appeal or otherwise as though it were a decree. It is however, to be borne in mind that such an order will have the incidents of decree only, and that by itself, is not a decree.

10. The real question now that arises for our consideration is, whether the order passed under Order 21, Rule 58(3) of amended Code is in the nature of 'an original decree' or 'an appealable order'.

11. Under the unamended Code, all questions decided by the Executing Court and covered by Section 47 were treated as decrees as defined under Section 2(2) of the unamended Code and therefore, they were not 'appealable orders'. Now, in view of exclusion of 'orders' passed under Section 47 of unamended Code, from the definition of 'decree' as per the amended Code, orders passed under Section 47 of unamended Code are no more 'decrees' and they are only 'appalable orders' not attracted by Section 96 of the Code.

12. No doubt, Order 21, Rule 58(4) declared that the order made under sub-rule (3) "will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree". Thus, the order is declared to be a 'deemed decree' and not a 'decree' by itself.

13. Now, adverting to the case law on the issue, Mr. Durga Prasada Rao, invited our attention to a catena of decisions. In Sidramappa v. Shankaralingappa, , Ram Krishna Mandal v. Baikuntha Lal, , Avinash Chander v. Mohan Lal,

and Harbans Lal v. Ram Jawai Devi, , the question involved is whether against an order made under Order 21, Rule 58(3) it is 'an Appeal' or 'Revision' that arises. Therefore, those decisions are all (of) no help in the present case, because we are concerned with the question, whether it is a 'Miscellaneous Appeal' or 'a Regular Appeal' that lies against the order made under Order 21, Rule 58(3) of the Code. Further, the two decisions, one of the Kerata High Court in B.M. Aishabi v. A. Yakub, and the other of Calcutta High Court in Commr. of Payments (Coking Coal) v. Sourindra Nath, relate to, the question whether it is 'Appeal' or a separate 'suit' that has got to be resorted to against an order made under Rule 58 of Order 21 of the Code. So much so, the decision of this Court reported in B. Venkat Rao v. C. Subbaiah, , deals with a question completely different and there, a Division Bench of this Court was dealing with the question, whether a 'Second Appeal' lies against an order passed on appeal assailing the original order made under Order 21, Rule 58. Therefore, these decisions are also of equally no assistance to advance the case of the appellant. However, the decision of the Madras High Court in Vasanthi. 'Mrs. v. K., Karuppanna Gounder, 1988 (2) The Law Weekly 45, is one dealing with the question, whether dismissal of the appeal by the lower Appellate Court on the ground that only a regular appeal lies under Section 96 of the Code against an order made under Order 21, Rule 58 of the Code is justifiable. After considering the scope of Order 21, Rule 58(4), Section 104(1), Section 2 (2) and Section 96( 1) of the amended Code and number of other decisions ruling the field, it is held that no regular appeal' is contemplated as provided under Section 96, C.P.C., but a 'civil miscellaneous appeal' alone is contemplated and as such the lower appellate Court is wrong in holding that a civil miscellaneous appeal is not maintainable and only a regular appeal would lie.

14. This Court In B. Biksha Reddy v. G. Venuka Bai, 1982 (2) An WR 181, had the occasion in considering a question of identical nature on hand white deciding the Court-fee payable in all appeal, no doubt, filed under Order 21, Rule 97 of the amended Code. The line of reasoning adopted therein is analogically helpful in resolving the present issue. Amended Rule 98, just as Rule 58(4), declares that the order made has the same force as if it were a decree. By this, it does not follow that the application made under the said provision is a suit and should be valued as such. It is helpful to read hereunder the relevant paragraph in the said decision.

"Here, language of Order 21, Rule 103, Civil Procedure Code, can be compared with Order 21, Rule 58. Rule 58 relates to adjudication of claims and objections to attachment of property. Sub-rule (2) of Rule 58 is the same as Rule 101. Sub-rule (4) of Rule 58 is the same as Rule 103. Sub-rule (5) or Rule 58 says that where a claim or objection is preferred and the Court refuses to entertain it, then 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. This provision is similar to old Rule 103. After amendment of Rules 97 to 103 we do not now have a similar provision. Therefore, i hold that the appeal need not be valued as if it is from a regular suit."

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(3) Order, 21 only a Miscellaneous Appeal lies and not a Regular Appeal, since the application made under Order 21, Rule 58(1) can in no way be treated as a regular suit. In the light of these tow 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) of Order 21 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'.

15. In this view of the matter that only a 'Miscellaneous appeal' lies, there is not much of controversy over the court-fee payable on such a 'Miscellaneous appeal'. Article 3 of Schedule 2 of Andhra Pradesh Court Fee and Suits Valuation Act, 1956 provides that proper court-fee payable on Memorandum of a Miscellaneous appeal of the present nature is Rs. 10/-. The submission made by the learned Government Pleader that ad valorem court-fee has to be paid is in the back ground of his contention that only a 'Regular appeal' lies under Section 96 of the Civil Procedure Code. In as much as the basic contention is repelled, the consequent submission based on such repelled contention deserves no consideration.

16. In the result, we hold that the Civil Miscellaneous Appeal, as numbered, is maintainable and the court-fee paid thereon is correct.

17. Admit the Miscellaneous Appeal.

18. Order accordingly.

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