JUDGMENT Mookerjee, J. Prabir Kumar Sets, the respondents herein, has obtained a decree for eviction in Ejectment Suit No. 892 of 1977 in the City Civil Court at Calcutta against Smt. Anadi Devi Agarwalla. The respondent put the said decree into execution. According to the report of the Bailif, the present appellant had resisted the execution of the said decree claiming to be a sub-tenant under the judgment-debtor. Thereupon, the decree-holder respondent made an application in the executing Court under Order 21, Rule 97 of the Code for execution of the writ of delivery of possession with police help. The present applicant had opposed the said application claiming to be a sub-tenant of the suit premises from long before the year 1956. The learned Judge, 4th Bench, City Civil Court at Calcutta by his judgment and decree under appeal allowed the Misc. Case under Order 21, Rule 97 of the Code and directed the decree holder to get possession of the suit premises through police help. The appellant, being aggrieved, by the said order, presented this Memorandum of Appeal which has been described as an Appeal from Original Decree. The appellant has been ad-valorem court fees upon the Memorandum of Appeal which has been valued at Rs. 3,000/-. 2. The Stamp Reporter reported that the Memorandum of Appeal should be classified as "Appeal from Order". Mr. Roy Chowdhury, learned advocate for the petitioner, has disputed the correctness of the said report and has submitted that the Memorandum of Appeal has been properly classified as one from original decree. 3. Rule 103 of Order 21 of the Code of Civil Procedure has been amended by Code of Civil Procedure (Amendment) Act, 1976, (Act 104 of 1976). The said rule now provides "Where any application has been adjudicated upon under rule 98 or rule 100, 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". 4. The said rule now provides "Where any application has been adjudicated upon under rule 98 or rule 100, 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". 4. Three points arise for consideration : (1) whether an appeal against an order under Rule 98 or Rule 100 of Order 21 of the Code should be classified as an appeal from decree or as an appeal from order, (2) whether such a Memorandum of Appeal should hear fixed court-fee stamps under Schedule II, Rule 11 of the West Bengal Court Fees Act or ad-valorem court fees stamps under Schedule I of the said Act and (3) whether the appeal should be placed for healing under Order 41, Rule 11 of the Code of Civil Procedure. 5. The learned advocates for both parties have made elaborate submissions and, therefore, it would be necessary for us to discuss the above points at some length. Decisions of the court may consist either of decrees or orders. The said two expressions have been defined respectively in clauses (2) and (14) of Section 2 of the Civil Procedure Code, 1908. Said definition of the expression "decree" in section 2(2) has two parts. The first part indicates that for considering a decision as a decree the following conditions should be fulfilled : (i) formal expression of (ii) adjudication (iii) in a suit (iv) which conclusively determines, (v) rights of the parties or any of them. Said section 2(2) secondly mentions that the orders which may not satisfy all the above conditions but still are deemed to be decrees. In other words by legal fiction orders rejecting the plaint under Order 6, Rule 11 of the Code and orders for restitution under section 144 of the Code are treated as decrees. Before amendment made by the Civil Procedure (Amendment) Act, 1976, orders under section 47 of the Code were also deemed under Sec. 2(2) to be decrees. But After the said amendment the orders under section 47 are no longer so. Before amendment made by the Civil Procedure (Amendment) Act, 1976, orders under section 47 of the Code were also deemed under Sec. 2(2) to be decrees. But After the said amendment the orders under section 47 are no longer so. The section 96(1) of the Code has laid down that save where otherwise expressly provided in the body of the 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 authorised to hear appeals from the decisions of such court. A second appeal under section 100 of the Code lies to the High Court from every decree passed in an appeal by any court subordinate to the High Court subject to the conditions laid down therein. 6. The expression "Order" has been defined in section 2(14) of the Code as the formal expression of any decision of a Civil Court which is not a decree. For the purpose of appeal ability the Code has divided the orders broadly into the following categories : (a) orders which are not appealable, (b) orders which are appealable according to the provisions contained in the body of the Code, (c) the orders which have been made appealable by any other law for the time being in force, (d) orders specified by clauses (ff), (ff), (a) and (g) of sub-sec. (1) of section 104 of the Code, and (e) orders made under the rules from which an appeal has been expressly allowed by Order 43, Rule 1. It is necessary to note that no appeal lies from any order passed in appeal under section 104 of the Code, 7. The Civil Procedure Code has not made any provisions for nomenclature of appeals and their classification. This court under clause 37 of the Letters Patent has been empowered to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before this Court. This court has from time to time framed rules applicable to this Court in its appellate jurisdiction known as Rules of the High Court at Calcutta, Appellate Side. The Judicial Department Manual is a compilation of the office procedure of the Appellate Side of this Court. This court has from time to time framed rules applicable to this Court in its appellate jurisdiction known as Rules of the High Court at Calcutta, Appellate Side. The Judicial Department Manual is a compilation of the office procedure of the Appellate Side of this Court. Under the Appellate Side Rules and also under the Judicial Department Manual appeals from orders which are deemed to be decree under section 2 (2) of the Code are always classified as appeals from orders. 8. The Rule 2, Chapter II of the said Appellate Side Rules enumerated the duties and powers of the Registrar in relation to Civil and Criminal matters. The Registrar under clause (3) of Rule 3 is to receive appeals from the decrees and orders of subordinate civil courts and in case of second appeals and appeals from orders to post them for hearing under Order 41, rule 11 of the Code and in case of appeals from original decree to issue notices as soon as the same registered. The Rule 17, Chapter V, Part-II of the Appellate Side Rules prescribe that an appeal from the original decree and an appeal under the Workman's Compensation Act and an appeal from an order under Article 226 of the Constitution of India shall be admitted and registered and notices would be issued to the respondent. In case of an appeal from appellate decree or an appeal from an order other than an appeal under the workman's Compensation Act and an appeal from an order under Article 226 of the Constitution, the officer concerned shall admit it and cause it to be registered and then posted to a Bench for hearing under Order 41, rule 11 of the Civil Procedure Code. Thus, under the Appellate Side Rules appeals from original decrees, appeals from orders under the workmen's Compensation Act or from orders under Article 226 of the Constitution are not required to be posted to a Bench for hearing under Order 41 Rule 11 of the Code. It has been the consistent practice of this Court to place appeals from appellate decrees and appeals from all other orders for hearing under Order 41, Rule 11 of the Code. This court has always treated appeals from orders which are deemed to be decrees as appeals from order, for purposes of clause (b) of Rule 17 of Chapter-V of the Appellate Side Rules. This court has always treated appeals from orders which are deemed to be decrees as appeals from order, for purposes of clause (b) of Rule 17 of Chapter-V of the Appellate Side Rules. Thus, the orders which are deemed to be decrees under section 2(2) of the Code, are registered as appeals from orders and if they are in time and in form are posted for hearing under order 41 rule 11 of the Code. Until the words "Section 47" were omitted from section 2(2) of the Code, Appeals from Orders under section 47 also used to be classified as appeals from Orders and they used to be heard under Order 41, Rule 11 of the Code. 9. The question is whether in matters of classification and the requirement for hearing under Order 41 Rule 11 of the Code, the appeals from orders passed under rules 98 and 100 of Order 21 of the Code should be treated differently from appeals from orders which are deemed to be decrees under section 2(2) of the Code. In our view, in the above matters of procedure and practice, no distinction can be legitimately made between appeals against orders which are deemed to be decrees and those against the orders which have the same force and are subject to the same conditions as to appeal, or otherwise as if they were decrees. The above expressions appearing in later part of section 2(2) and those in Rule 103 of Order 21 of the Code both introduced legal fictions by provisions that the orders specified would be treated as decrees. Both kinds of orders are appeal-able under section 96 and orders passed in appeal are subject to second appeals under section 100 of the Code. 10. Before the section 2(2) was amended by Civil Procedure (Amendment) Act, 1976, orders under section 47 of the Code were deemed to be decrees. After the said amendment, the orders under section 47 have been excluded from the definition of the expression "decree" in section 2(2) of the Act. Nonetheless, under Explanation (7) inserted by the said Amendment Act of 1976, the provisions of section 11 of the Code apply to proceedings in execution of a decree etc. 11. After the said amendment, the orders under section 47 have been excluded from the definition of the expression "decree" in section 2(2) of the Act. Nonetheless, under Explanation (7) inserted by the said Amendment Act of 1976, the provisions of section 11 of the Code apply to proceedings in execution of a decree etc. 11. Civil Procedure (2nd Amendment) Act, 1976 has also altered the provisions contained in Order 21 of the Code relating to adjudication under Rule 58, Order 21 of the Code relating to claims and objections against attachment and those under Rules 98 and 100, Order 2l of the Code relating to resistance to the delivery of possession to the decree-holder or purchaser. The Rules 58(1) and 103, Order 21 of the Code lay down the effect of adjudication of the above claims and objections. In each case, the person who is resisting or opposing attachment or execution, claims a right independently of the judgment-debtor. Under the present law the said adjudications have been given the force of decree although the said orders do not satisfy all the requisite conditions specified in Part I of section 2(2) of the Code. The claim is made by one who alleges to be a third party and not a representative of the judgment debtor and the proceedings in which such a claim is made is not a suit. Thus, rules 58(4) and 103 of Order 21 have introduced a legal fiction by which the orders mentioned in these rules, although not included in the definition of the expression "decree" given in section 2(2) of the Code shall be treated as decrees. According to Rule 103, orders passed under Rules 98 and 100 of Order 21 of the Code shall have the same force as if they were decrees. Same would be equivalent to laying down that the orders shall be deemed to be decrees. The second part of Rule 103 has prescribed that the said orders would be subject to the same conditions as to appeals or otherwise. This part of Rule 103 appeals to be an elaboration of the 1st Part of Rule 103. In other words, the second part amplifies the effect of imparting the force of decrees to those orders under Rules 98 and 100 of Order 21 of the Code. This part of Rule 103 appeals to be an elaboration of the 1st Part of Rule 103. In other words, the second part amplifies the effect of imparting the force of decrees to those orders under Rules 98 and 100 of Order 21 of the Code. In our view, the legislature did not thereby intend to make any differentiation of substance between the orders which are deemed to be decrees according to the definition of the said expression in Section 2(2) of the Code and the orders which under Rule 103 of Order 21 which have been given force of decrees and have been made subject to same conditions as to appeals or otherwise. Presumably, the legislature thought it necessary to mention in Rule 103 of Order 21 the provision for appeal ex-abundant cautela to dispel any possible doubt which might have otherwise arisen because of Sections 104 and 105 of the Code prohibiting appeals against orders except those specified in Section 104 of the Code. Secondly, the Rule 103 of Order 21 has brought about a fundamental change to the scope and effect of the adjudications and orders passed under Rules 98 and 100 of Order 21. Therefore, the said adjudication orders have been given the force of decrees and also made appeal-able. 12. The expression, "appeal or otherwise" would be clearly referable to the different provisions in the body of the Code and the Rules in the 1st Schedule relating to appeals from decrees. In other words "otherwise" in the context in the context means such orders would be appealable and they would be governed by substantive and procedural provisions of the Code relating to appeals from decrees. We are unable to subscribe to the view that the expression, "otherwise" is wide enough to include matters of payment of court fees payable on the memoranda of appeals from original and appellate orders under Rules 98 and 100 of Order 21 of the Code, classification of such appeals and practice and procedure relating to filling, registration and admission of such appeals. The Code does not prescribed rules relating to the said matters. We have already referred to the provisions of the Appellate Side Rules and those of the Judicial Department Manual. In this connection, we may refer to the Division Bench decision in (1) Re : Ram Dayal De, AIR 1932 Cal. The Code does not prescribed rules relating to the said matters. We have already referred to the provisions of the Appellate Side Rules and those of the Judicial Department Manual. In this connection, we may refer to the Division Bench decision in (1) Re : Ram Dayal De, AIR 1932 Cal. 1, which laid down that in case any rule of the Civil Procedure is inconsistent with the rules of this Court, under clause 37 of the Letters Patent, the latter shall prevail. We have already mentioned that previously appeals from orders under section 47 used to be classified from orders and they used to be heard under order 41 Rule 11 of the Code. The proceedings under Order 21, Rules 98 and 100 also relate to investigation of claims and objections in course of execution of decrees and there is reason why the rules and practice of Rules 17 (b), Chapter V, should not be applies also in case of appeals against such orders under Rules 98 and 100 of Orders 21 of the Code. Therefore, the said appeals should be also classified as appeals from orders and posted for hearing under Order 41 Rule 11 of the Code. 13. A Division Bench of this Court in (1) Ganga Dutt Murarka v. Smt. Bibhabati Debi and Others, AIR 1957 Cal. 65 , had considered some of these matters relating to appeals from orders which are deemed to be decrees under section 4 of the Partition Act. Although their Lordships had observed that such appeals from order under Section 4 of the Partition Act might have been classified as appeals from original decrees, they had preferred to uphold the classification of the same as an appeal from order. Their Lordships had also observed that it was difficult to say why these appeals were described as miscellaneous appeals except that the said term was in use in the Civil Rules and Orders and the Appeals and the orders under Sections 47 and 144 of the Code of Civil Procedure were described as Miscellaneous Cases. 14. Our attention has been drawn to the decision of Mallik, J. in (3) Bhutnath Ta and others v. Barindra Nath Bhattacharjee and others 37 C.W.N. 227 : A.I.R. 1933 Cal. 546. 14. Our attention has been drawn to the decision of Mallik, J. in (3) Bhutnath Ta and others v. Barindra Nath Bhattacharjee and others 37 C.W.N. 227 : A.I.R. 1933 Cal. 546. An appeal against an order under Order 21, Rule 50(2) of the Code was preferred describing the same as an appeal from an order and a court-fee of Rs. 5/- was paid. The Registrar, Appellate Side as the Taxing Authority made a reference under Section 5 of the Court Fees Act. Mallik, J. answered the said reference by holding that the exact meaning of the words "conditions as to appeal or otherwise as if it were a decree" is "other conditions as to appeal or any other respects as if it were a decree". Secondly, the learned Judge answered in the affirmative the question that all conditions imposed by orders or rules outside the Civil Procedure Code were intended to be included in the words "conditions as to appeal or otherwise as if it were a decree". It may be noted that the learned advocates both for the appellant and also for the Government had conceded that more extensive meaning ought to be given to the aforesaid words. We are unable to apply the ratio of the said decision in interpreting the scope of Rule 103 of Order 21 of the Code. In the first place, as already stated, the decision in Bhutnath To's case (supra), was in respect of court fees payable and the decision, was also rendered on concession. Further, the learned Judge who decided the said case had no occasion to consider the scope and effect of Rule 103 of Order 21 of the Code. The points which arise before us have to be considered in the context of the amendments to the Code made by the Civil Procedure Code (Amendment) Act, 1976. The learned Judge in Bhutnath Ta's case (supra), had no occasion to consider whether in the matter of court fees and the practice and procedure relating to their classification, admission etc. any distinction would be possibly made between the orders which under Section 2(2) are deemed to be decrees and the orders by the Rules in the 1st Schedule of the Code have been given the force of decrees. any distinction would be possibly made between the orders which under Section 2(2) are deemed to be decrees and the orders by the Rules in the 1st Schedule of the Code have been given the force of decrees. We have already held that this Court in the matters of practice and procedure have made no distinction between the orders which are deemed to be decrees under Section 2(2) and the orders which have the force of decrees. 15. In the instant case, the appellant has paid ad valorem court fees on the memorandum of appeal and there is no reference to us regarding the sufficiency of court fees and therefore, we need not finally decide whether the fixed court fees or ad valorem court fees should be paid in respect of appeals against the orders under Rules 98 and 100 of Order 21 of the Code. 16. In view of the above position of law, we conclude that appeals preferred against orders passed under Rules 98 or 100 of Order 21 of the Code should be classified as appeals from orders and they are required to be heard under Order 41, Rule 11 of the Code of Civil Procedure. 17. We, accordingly, direct this appeal to be placed for hearing under Order 41, Rule 11 of the Code of Civil Procedure and the application for interim orders made by the appellant be put up at the time of the said hearing under Order 41, Rule 11 of the Code of Civil Procedure. 18. Let necessary corrections be made in the cause title of the Memo of Appeal. Interim order already made will continue till the hearing of the appeal under Order 41, Rule 11 of the Code which is fixed for hearing on Friday week.