JUDGMENT [ENTITY], C.J.
1. A Division Bench of this Court expressed the view that the judgment in B.[ENTITY] v. M.S.N.Charities, needs reconsideration. It related to the interpretation of [SECTION] [ACT] The question was framed as under:
"Whether, against an order passed under [SECTION] 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 C.R.P., may briefly be stated as under:
3. Petitioner filed O.S.No.1 of 19[SECTION] against the 2nd respondent in the Court of Junior Civil Judge, Huzurnagar, for recovery of certain amount. He obtained an order of attachment before judgment, dated [SECTION]-1-19[SECTION], by filing an application under [SECTION] [ACT] The suit was decreed for a sum of Rs.68,900/-. In E.P.No.60 of 1[SECTION]9 filed by the petitioner, an application under [SECTION] [ACT] was filed by the 1st respondent, objecting to the attachment of the suit schedule property. She is the daughter of the sole defendant i.e. 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 30-03-2001, and the attachment against the property in question was raised.
4. Aggrieved by the order passed in [CASE NUMBER], the petitioner presented an appeal under [SECTION] read with [SECTION] [ACT], before the Court of Senior Civil Judge, Miryalaguda. Placing reliance upon the judgment rendered by a learned single Judge of this Court in [PRECEDENT], the lower appellate Court returned the appeal as not maintainable. Challenging the same, the petitioner filed the present revision.
5. The question as to whether an order passed under [SECTION] [ACT], (hereinafter, reference [SECTION] be taken as [SECTION] is appealable under [SECTION] or [SECTION] [ACT], fell for consideration before a Division Bench of this Court in [ENTITY]'s case (1 supra). It was held therein that an order passed under [SECTION], cannot be equated to a decree and thereby, an appeal under [SECTION], and not the one under [SECTION], can be maintained. In [PRECEDENT], a learned single Judge of this Court took a totally different view and held that against the order passed under [SECTION], only an appeal under [SECTION], has to be filed. However, the attention of the learned single Judge was not drawn to the notice of a Division Bench in [ENTITY]'s case (1 supra). In view these developments, when the C.R.P. came up for admission, it was referred to a Division Bench, which in turn, has framed the question referred to above.
6. Learned counsel for the petitioner Sri [ENTITY], submits that the order passed by an executing Court in a claim petition filed under [SECTION] is not brought within the fold of a definition of decree under [SECTION] of [ACT], and in that view of the matter, it cannot be treated as a decree. He submits that it is only a decree that is appealable under [SECTION] and the outcome of adjudication under [SECTION], being an order, is appealable only under [SECTION] [ACT] He contends that the fact that certain characteristics of a decree are attributed to an order passed under [SECTION], for limited purposes, does not transform it into a decree. He also stresses upon the significance of omission of [SECTION] from the definition of a decree through [ACT]. 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] read with [SECTION] [ACT], is maintainable against an order passed in an application filed under [SECTION].
7. Learned counsel also submits that in case such orders are to be treated as decrees, a party aggrieved thereby, would be burdened with payment of Court fee on the entire suit claim. As an alternative submission, he contends that, if for any reason, the appeals against such orders are to be filed only under [SECTION], the Court fee payable thereon shall be the one under [SECTION] of [ACT] (for short the "[ACT]") read with [SECTION] of [ACT]
8. Respondents were served with notice. They have not chosen to enter appearance. Having regard to the importance of the matter, this Court requested Sri [ENTITY], learned Senior Counsel, to assist this Court, as amicus curiae. He acceded to the request and extended valuable assistance to the Court.
9. Learned Senior Counsel submits that prior to the amendment of [ACT], the claims made by 3rd parties against orders of attachment were required to be dealt with under [SECTION], 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, [ACT] 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 [SECTION], as it stands now, learned Senior Counsel submits that the predominant object of equating an order passed under [SECTION] with a decree, was to provide for an appeal under [SECTION]. 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 the Supreme Court as well as various High Courts, learned Senior Counsel submits that the object of the Parliament in equating the order under [SECTION] to a decree is clear and it is impermissible to treat it different from a decree. According to him, the scheme of [SECTION], or [SECTION], does not permit of an appeal under those provisions against such orders.
10. As regards the Court fee payable on appeals against such orders, learned Senior Counsel submits that [SECTION] of the [ACT] is the relevant provision.
11. The answer to the question framed for adjudication in this C.R.P. depends upon the interpretation, which is to be placed on [SECTION] of [ACT] Before [ACT] 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 [SECTION]. It would be sufficient, if reference is made to [SECTION]. It read as under:
"[SECTION]: Where a claim or an objection is preferred, the party against whom an 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, the order shall be conclusive."
12. To the same effect was [SECTION], in relation to delivery of possession. A party aggrieved by an order passed under [SECTION] or [SECTION], 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, instead of making it necessary for the parties to file separate suits. 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 proceedings any property is attached, there is generally a claim filed under [SECTION]. If this claim is rejected, a suit is filed under [SECTION] of that Order. If the attachment of the property is finally upheld, there are obstruction proceedings under [SECTION], followed by a suit under [SECTION]. The Fourteenth Report, contains a 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 [SECTION] or [SECTION]. We are, however, in agreement with the recommendation in the Fourteenth Report, which is based upon certain ! evidence recorded by the Commission."
13. It was in this context, that the amendment was carried out, and present [SECTION] came to be enacted. It is beneficial to extract the Rule, to appreciate the scheme provided for in it.
"[SECTION] 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:
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 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 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 a decree.
(5)Where a claim or an objection is preferred and the Court, under the proviso to [SECTION], 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.]"
14. In relation to delivery of possession, the gist of the amendment is reflected in [SECTION] and [SECTION]. A perusal of [SECTION] 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 [SECTION] 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 [SECTION]. The nature of disposal to be given to the claims or objections, filed under [SECTION], is indicated in [SECTION]. Under [SECTION], 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 [SECTION], particularly in the context of appeal, is very clear.
15. One of the contentions advanced on behalf of the petitioner is that, if the Parliament were of the view, that an appeal under [SECTION] [ACT] be provided against the order passed under [SECTION], the easiest thing for it would have been to amend [SECTION] [ACT] 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]. In fact, every order that is passed by an executing Court in an application filed under [SECTION] was a decree and appealable under [SECTION]. The remedy of filing of suits against orders passed in applications filed under [SECTION], [SECTION], [SECTION] or [SECTION], as they stood before 1976, was on account of the mandate, contained in [SECTION] and [SECTION]. With a view to streamline the execution proceedings, the definition of a decree was narrowed down by removing the orders passed under [SECTION]. Such blanket exclusion was to have resulted in rendering none of the orders passed under [SECTION], which are in relation to execution, appealable. The importance of the orders passed under amended [SECTION], [SECTION] and [SECTION], was recognized and the characteristics of a decree were attached to them by conferring the status of decree.
16. It is true that one of the methods to ascribe the attributes of a decree to an order passed under [SECTION], 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 complications. While over simplification is likely to result in exclusion 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 things, 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 field of legislation is "never to enact under the guise of definition" (see Craies on Statute Law 7th Edn. P.[SECTION]2). 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.
17. 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 [ENTITY] in [PRECEDENT], 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 flowed from or accompanied it . The statute says that you must imagine a certain state of 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".
18. This principle is followed by the Supreme Court and other High Courts of our country. In [PRECEDENT], the Supreme Court observed as under:
"If by the fiction introduced by [SECTION] ([ACT], 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] (for taxes) becomes available to the committee so would the right of making an appeal prescribed by [SECTION] be available to the appellant."
19. In [PRECEDENT], [SECTION] of the [ACT], fell for consideration. Clause (b) thereof provided that an 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 [SECTION] Consequences provided for under [SECTION], were to follow on the basis of this fiction. The Supreme Court repelled the contention that the consequences provided for under [SECTION], for violation of specific provisions, 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] is treated as a failure to furnish return of income under [SECTION]. It is a necessary implication of this fiction that the estimate of tax on the income to be submitted under [SECTION] is, in fact, different from the return to be furnished under [SECTION], and to appreciate the full significance of this fiction, it is necessary to examine what the distinction is. Under [SECTION] 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] 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], 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 the very nature of it, it can only be that. A person who sends an estimate under [SECTION] has also to send a return of his income for the accounting year under [SECTION], and [SECTION] provide for adjustment of advance tax paid under [SECTION] towards the tax as finally computed under [SECTION]. Thus, there is a clear distinction between a return of income under [SECTION], which can only be during the year of assessment and an estimate of tax on income under [SECTION], which can only be in the year of account."
Para 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], 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 "
20. After referring to the observation of Lord [ENTITY], extracted above, the Supreme Court concluded as under:
" The fiction under [SECTION] therefore that failure to send an estimate under [SECTION] 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] must be deemed to have been given, and in that view, [SECTION] would apply on its own terms."
[SECTION]. In [PRECEDENT] , the Supreme Court had reiterated the settled principle of law, that a statute is a verdict of Legislature, and the language employed in 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 [SECTION], 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.
22. A Full Bench of this Court in [ENTITY] v. Nellore Finance Corporation, (F.B.) held that the claim or objection made under [SECTION], is almost a suit. Justice [ENTITY], as he then was, speaking for the Bench, held as under:
"Para- 10: The scope of enquiry under [SECTION] 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 [SECTION], the filing of another suit is, in the very nature of things, superfluous and the suit is therefore necessarily excluded. At the same time, against the order passed under [SECTION], an appeal is provided for just as an appeal could be filed against the decree in a suit "
23. In [ENTITY]'s case (1 supra), a Division Bench of this Court treated the order passed under [SECTION], as a deemed decree, in contradistinction to a decree, defined under [SECTION]. The fact that the order passed under [SECTION] 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] and not [SECTION]. In arriving at this conclusion, extensive reference was made to the judgment of this Court in [ENTITY] v. G. Venuka Bai, 1[SECTION]2 (2) An.W.R. 181.
24. The dispute in [ENTITY]'s (7 supra) case was only about the Court fee to be paid in appeal filed against an order passed under [SECTION]. After discussing the relevant provisions of [ACT], a learned single Judge of this Court held that the Court fee has to be determined with reference to [SECTION] of the [ACT]. Reference to [SECTION] was made only as a provision, comparable to [SECTION]. 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."
25. The Division Bench did notice this fact and observed that the judgment in [ENTITY]'s case (7 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, 1[SECTION]8 (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 [SECTION], [SECTION] only a Miscellaneous Appeal lies and not a Regular Appeal, since the application made under [SECTION], [SECTION] 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 herein-before, we are of the firm opinion that the order made under [SECTION] 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] namely of 'decree' so as to attract the provisions of [SECTION] of the [ACT] and therefore, only a 'Miscellaneous appeal' lies against such 'order' and not a 'Regular appeal'."
26. The attention of the Bench does not appear to have been drawn to the judgment of Full Bench in [ENTITY]'s case (6 supra). In [PRECEDENT], relied upon by the learned counsel for the petitioner, a Division Bench of the Punjab and Haryana High Court had explained the purport of the [SECTION] and appealability of orders passed under [SECTION] [ACT], in the context of the amended definition of decree. As in [ENTITY]'s case (1 supra), a distinction was maintained between a decree, as defined under [SECTION], and orders having the force of a decree, namely, order passed under [SECTION], in this case also. Notwithstanding the same, such orders are held to be appealable under [SECTION]. 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], under which original decrees are appealable."
27. 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 [PRECEDENT], a Division Bench of the Kerala High Court disagreed with the judgment of this Court in [ENTITY]'s case (1 supra). It took the view that the legislative intent of conferring the status of a decree to the order passed under [SECTION] must be respected and such orders are appealable under [SECTION] of [ACT]
28. In [PRECEDENT] a Division Bench of this Court dealt with an order passed under [SECTION]. The matter however arose in a totally different context. The petitioner therein 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] read with [SECTION] [ACT] On dismissal of the appeal, he filed a revision before the High Court under [SECTION] [ACT] 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 [SECTION], [SECTION] [ACT], the party to the proceedings under [SECTION] [ACT] 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] [ACT] 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] of the [ACT], 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 into Civil Miscellaneous Second Appeal "
29. 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.
30. To appreciate as to whether the view taken by the Division Bench in [ENTITY]'s case (1 supra) conforms to the mechanism of appeals provided for under [ACT], it is necessary to refer to the relevant provisions. [ACT] provides for two kinds of appeals from the adjudications undertaken by Courts of the original jurisdiction, namely, appeals against decrees, and appeals against orders. The former are provided for under [SECTION], and the latter under [SECTION]. Though the provisions are familiar, it is necessary to extract them, to appreciate their actual purport.
"[SECTION]: Appeal 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]: 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:-
3[ ] 4[(ff) an order under [SECTION] and order under [SECTION] or [SECTION] refusing leave to institute a suit of the nature referred to in [SECTION] or [SECTION], as the case may be;]
(g) an order under [SECTION];
(h) an order under any of the provisions 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:
6[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."
31. These two substantive provisions are supplemented by [SECTION] of [ACT] [SECTION] gets attracted only in such cases, where the subject matter of the appeal is a decree. On the other hand, [SECTION] provides for appeals against orders. [SECTION] 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] and [SECTION], that are appealable.
32. Once it emerges that an order passed under [SECTION] is conferred the status of a decree, in the particular context of appeal, [SECTION] gets attracted. [SECTION] 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]. The contention of the learned counsel for the petitioner that the appeals provided for under [SECTION] are against original decrees and not other kinds of decrees is unacceptable. The word 'original' in the heading of [SECTION] signifies the jurisdiction, i.e. original jurisdiction in contradistinction to appellate jurisdiction.
33. [SECTION], 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], as it stands now, provides for appeals against five categories of orders. There is no dispute that an order under [SECTION] 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 certainly 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 [SECTION] [ACT], restricts its scope. In none of the clauses contained in [SECTION], an order passed under [SECTION], finds place.
34. Further, if for any reason, the expression "an appeal expressly allowed by Rules" occurring in Clause (i) [SECTION](1) can be taken as including [SECTION] in its fold, the fact that [SECTION] directs that the order passed under [SECTION] shall have the same force of a decree, for the purpose of appeal cannot be ignored. On account of it, the order passed under [SECTION] stands physically lifted from the purview of [SECTION] [ACT] 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 [ACT] 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.
35. When [SECTION] [ACT] specifically provides for appeals against decrees, and [SECTION] directs that the order passed under [SECTION] thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An interpretation 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 [SECTION], an order passed under [SECTION] thereof, partakes a character of a decree for all practical purposes, more so, in the context of availing the remedy of appeal. Same reasoning holds good for the orders passed under [SECTION] and [SECTION] [ACT] 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 [ENTITY]'s case (1supra) does not lay the correct proposition of law. Once it is held that orders passed under [SECTION] and [SECTION] and [SECTION] [ACT], are appealable under [SECTION] [ACT], 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.
36. A serious attempt is made by the learned counsel for the petitioner to persuade this Court to sustain the judgment in [ENTITY]'s case (1 supra), on the ground that requiring the parties aggrieved by the orders under [SECTION] 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] [ACT], Court fee may be permitted to be paid under [SECTION] of [ACT].
37. Learned Senior Counsel submits that once it emerges that the order under [SECTION] is appealable under [SECTION], 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] of the [ACT].
38. [SECTION] of the [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 1/4th of the market value of the attached property, whichever is less. Learned Senior Counsel points out that since an objection under [SECTION] is equated to a suit, the fee stipulated under [SECTION] has to be levied on such applications and consequently, in an appeal filed against such orders, the same fee has to be levied under [SECTION]. [SECTION] reads as under:
"11. (i) Application for petition under [SECTION] of the [ACT]."
(i) When filed in a Revenue Court or a District One rupee Munsiff's Court ;
(ii) When filed in a Subordinate Judge's Court Two rupees or a District Court ;
(iii) When filed in the High Court Five rupees"
39. An examination of the provisions reveals that while [SECTION] specifically and directly refers to the applications filed under [SECTION], [SECTION] is a general provision in relation to suits to set aside the attachment. It is true that an application filed under [SECTION] are to be decided in the same manner as a suit. However, they cannot be said to be suits referred to in [SECTION]. The occasion to file a suit to set aside the attachment under [SECTION] would arise, if only the application filed under [SECTION] is not entertained and returned. It is on such suits, that the Court fee is payable under [SECTION]. On the other hand, if the application is entertained, [SECTION] 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 [SECTION] shall be the one provided for under [SECTION]. 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] of the Act. The view expressed in [ENTITY]'s case (7 supra), on the Court fee payable on applications filed under [SECTION], holds good for that category of applications as also the appeals arising out of them.
40. It may appear anomalous that the court fee payable on an appeal filed under [SECTION] [ACT] is so meager. However, it should not be forgotten that the endeavour 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 [SECTION], the court-fee payable should be the same as is at present payable in the case of an appeal from an order under [SECTION]. The State Governments have, by notifications issued under the [ACT], reduced the court-fee payable in respect of appeals against orders under [SECTION]. We recommend that the State Governments should issue a similar notification in respect of appeals against orders under [SECTION], as proposed to be revised."
41. Hence, we are of the view that the Court fee payable in an appeal preferred against the order under [SECTION] shall be the one calculated in accordance with [SECTION] of the [ACT].
42. For the foregoing reasons, we hold that;
a) Against the orders passed under [SECTION] and [SECTION] and [SECTION] [ACT] regular appeals under [SECTION] and not miscellaneous appeals under [SECTION] read with [SECTION] [ACT] are maintainable and that the judgment of this Court in [ENTITY]'s case (1 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 [SECTION] or [SECTION] of [ACT], as the case may be read with [SECTION] of the [ACT].
c) A second appeal under [SECTION] [ACT] is maintainable against an order passed in an appeal, arising out of order passed under [SECTION] or [SECTION] and [SECTION] [ACT]
43. Consequently, the order under revision is upheld and the C.R.P. is dismissed. The petitioner shall be entitled to avail the remedy of appeal under [SECTION] [ACT], against the order of the Executing Court, duly availing the benefit of [SECTION] of the [ACT].
44. Before parting with the case, we place on record, our appreciation, of the valuable assistance rendered by the learned Senior Counsel Sri [ENTITY], 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.
No costs.