Narain Dutt Ojha, J. - (1.) In execution of a decree passed in favour of the Appellant against Respondents 2 and 3 an objection was filed by the Respondent No. 1 under Order 21 Rule 58 Code of Civil Procedure. This objection was dismissed by the trial court but on appeal it was allowed by the lower appellate court. Aggrieved the decree holder has preferred this execution second appeal. The Stamp Reporter in his report dated 25th August, 1982 has pointed out that a regular second appeal and not an execution second appeal was maintainable and that if the memorandum of appeal was treated as that of a regular second appeal it was insufficiently stamped by Rs. 17/ -.
(2.) Counsel for the Appellant contests the report of the Stamp Reporter. According to him the appeal has rightly been filed as an execution second appeal on a fixed Court Fee of Rs. 5/ - and that a regular second appeal was not maintainable against the decree appealed against.
(3.) Having heard counsel for the Appellant I am of opinion that the stand taken by the Stamp Reporter that a regular second appeal and not an execution second appeal is maintainable is well founded. The definition of the term 'decree' as contained in Sec. 2 Sub -section (2) Code of Civil Procedure is as follows; 2.... (2)"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 Sec. 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. Before the amendment of Order 21 Rule 58 Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976 an order passed under Order 21 Rule 58 Code of Civil Procedure was not treated as a 'decree' and was not appealable as such. Such an order, however, has been made appealable by Sub -rule (4) of Rule 58 of Order 21 Code of Civil Procedure as it stands now after its being amended by the aforesaid amendment Act. Sub -rule (4) reads as follows; (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 a decree. The words "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 a decree" used in Sub -rule (4) referred to above occur in Sub -rule (3) of Rule 50 of Order 41 Code of Civil Procedure also. This Sub -rule (3) has not undergone any change and has been there in its present form since before the aforesaid Amendment Act was passed. This provision came up for consideration before the Calcutta High Court in Bhut Nath v/s. Barindra : AIR 1933 Cal. 546. It was held that the exact meaning of the words "conditions as to appeal or otherwise as if it were a decree" is "the conditions whether as to appeal or in other respects as if it were a decree" and these words include conditions imposed by orders or Rules outside the Code of Civil Procedure, and that an appeal from an order under Order 21 Rule 50(2) Code of Civil Procedure should be treated as a regular appeal and should be stamped with an advalorem fee and not as a miscellaneous appeal stamped with a fixed fee. On the plain language of the words referred to above I am in respectful agreement with the view taken in the case of Bhut Nath (supra). After the amendment in the definition of the term 'decree' contained in Sec. 2(2) of the Code of Civil Procedure by the aforesaid Amending Act no execution second appeal is now maintainable even against an order passed on an objection under Sec. 47 Code of Civil Procedure . Since the words referred to above in Order 21, Rule 58, Code of Civil Procedure are identical to those contained in Order 21 Rule 50 Code of Civil Procedure, they have to be interpreted in the same manner as they were interpreted in the case of Bhut Nath (supra).;