Arun Bhansali, J. - (1.) THIS appeal has been preferred by the objector against the judgment dt. 28.9.1996 passed by the Additional District Judge No. 2, Chittorgarh whereby his objections against the judgment and decree dt. 5.6.1991 passed by the said court has been rejected. In this appeal it is noticed that the same has been filed in the nature of civil misc. appeal claiming the same to be under Order 21 Rule 58(4) CPC. The provisions of Order 21 Rule 58(4) CPC reads as under: - - Rule 58(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.
(2.) THE said rule merely indicates that the adjudication order of objections under Order 21 Rule 58 shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Once it is provided that an order passed under Rule 58 of Order 21 is a decree, in the particular context of appeal, Sec. 96 CPC gets attracted. Section 96 CPC 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 is well within the parameters of Sec. 96 CPC. Section 104 CPC, 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 in it. Section 104 as it stands provides for appeals against five categories of orders and admittedly an order under Rule 58 of Order 21 does not fall in the same. In view thereof, as per the clear language of sub -Rule 4 of Rule 58 an order passed under sub -rule 3 thereof, partakes a character of a decree for all purposes, more so, in the context of availing the remedy of appeal, therefore, in the context of deciding the forum and provision of appeal, the order passed under Order 21 Rule 58 cannot be treated differently.
(3.) HOWEVER , even if it has been held that the civil misc. appeal as such is not maintainable and appeal under Sec. 96 CPC against the order passed under Order 21 Rule 58 CPC must be filed as Civil Execution First Appeal as the same only would be maintainable, does not affect the maintainability of the present appeal, as such, on account of limitation and court fees, inasmuch as, the limitation would be the same as provided for Civil Misc. Appeal and the court fees would be as provided in Schedule -II Article 11(h) read with Sec. 47 of the Rajasthan Court Fees and Suits Valuation Act, 1961. However, the office is directed to categories the said appeals as Execution First Appeals in future.;