JUDGMENT : 1. This is a classic example of protracting the litigation at every tier of an adjudicatory system and ultimately on the peripheral of the execution proceeding resultantly denying the decree-holder of the fruits of the decree though has ripen yet reverted back to its bud at the behest of the parties claiming their independent right, title and interest in respect of the decretal property. The decree for eviction obtained by the appellant has not been executed as yet as resistance appears to have been seen from various corners and the Court is adjudicating the issues as and when raised. 2. The instant appeal originates from an order of the Executing Court which impedes the rights of the appellant/decree-holder from proceeding with the execution case and a vehement objection is raised on the maintainability of an appeal before this Court. 3. Mr. Bose, learned Advocate appearing for the applicant in the Executing Court took a preliminary objection that in view of the provisions contained under Section 21(1)(a) of The Bengal, Agra and Assam Civil Courts Act, 1887, the appeal would not lie before the High Court as the reliefs claimed by his client in an execution proceeding was valued at Rs. 100/- and, therefore, the Court before embarking its journey on the circumference of Order XLI Rule 11 of the Code of Civil Procedure should decide the said preliminary objection. Before we proceed in this regard, it would be apposite and profitable to quote the provisions contained under Section 21 of the said Act which runs thus: 21. Appeals from - [Civil Judge (Senior Division) and Civil Judge (Junior Division)]: (1) Save as aforesaid, an appeal from a decree or order of a [Civil Judge (Senior Division)] shall be: (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed [One Lakh and Fifty thousand rupees] and in Bihar does not exceed Rupees Ten Lakh. (b) to the High Court of any other case. (2) Save as aforesaid, an appeal from a decree or order of a [Civil Judge (Junior Division)] shall lie to the District Judge. (b) to the High Court of any other case. (2) Save as aforesaid, an appeal from a decree or order of a [Civil Judge (Junior Division)] shall lie to the District Judge. (3) Where the function of receiving any appeals which lie to the District Judge under sub-section (2) has been assigned to an Additional Judge, the appeals may be preferred to the Additional Judge. (4) The High Court may, with the previous sanction of the [State Government] direct, by notification in the Official Gazette, that appeals lying to the District Judge under sub-section (2) from all or any of the decrees or orders of any [Civil Judge (Junior Division)] shall be preferred to the Court of such [Civil Judge (Senior Division)] as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly. 4. The meaningful reading of the language employed in the aforesaid Section leaves no ambiguity in our mind that an appeal from a decree or an order passed by the Civil Judge (Senior Division) shall lie to the District Judge, in the event, the value of the original suit in which such decree or order is passed does not exceed Rs. 1.5 lakh. Clause (b) of Sub-Section (1) of Section 21 of the Code postulates that the situation not covered under Clause (a) thereof, the appeal would lie to the High Court. Admittedly the suit for recovery of possession was valued at Rs. 1.58 lakhs and, therefore, the nuances of the aforesaid provisions are to be construed in the backdrop of the aforesaid admitted fact. The remedy by way of an appeal either under Clause (a) or (b) of Sub-Section (1) of Section 21 of the said Act is dependent upon the value of the reliefs claimed in the original suit from which the decree or the order sprung therefrom and for the purpose of the execution of such decree or order, the said Court would be regarded as a Court of first instance. 5. Section 37 of the Code of Civil Procedure defines the expression “the Court which passed the decree” in the following: Section 37. 5. Section 37 of the Code of Civil Procedure defines the expression “the Court which passed the decree” in the following: Section 37. Definition of Court which passed a decree: The expression “Court which passed a decree” or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include: (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance. (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. Explanation - The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit. 6. The meaningful reading of the aforesaid provision leaves no ambiguity in our mind that the Court which passed a decree is a Court capable to execute its decree but by virtue of the aforesaid provision, in the event, the decree is passed by the First Appellate Court reversing the judgment and decree of dismissal passed by the Trial Court yet the Trial Court would be regarded as Court of first instance for the purpose of execution. 7. Even Section 38 of the Code of Civil Procedure is explicit to the extent that the decree is required to be executed by a Court which passed it or a Court to which it is sent. 7. Even Section 38 of the Code of Civil Procedure is explicit to the extent that the decree is required to be executed by a Court which passed it or a Court to which it is sent. The conjoint reading of the language used in Sections 37 and 38 of the Code of Civil Procedure conveys a laudable intention of the legislators that the Court which passed the decree shall be regarded as an Executing Court and the Court while passing a decree in exercise of the appellate jurisdiction meaning thereby reversing the judgment and decree of the Trial Court, the Trial Court shall be regarded as an Executing Court. 8. The obvious reason sublime the aforesaid provision is to confer jurisdiction upon the Court of first instance to execute the decree and avoidance of the Appellate Court to act as an Executing Court. The aforesaid provision can be harmoniously construed in the perspective of Clause (a) of Sub-Section (1) of Section 21 of the said Act contemplating the valuation of the original suit from which the decree or the order flows subject, however, to pecuniary limit. 9. Since the suit was valued above Rs. 1,50,000/- the Civil Judge (Senior Division) is conferred with jurisdiction to entertain such suit and because of the pecuniary restrictions having imposed in Clause (a) thereof the remedy by way of an appeal has to be resorted and/or exhausted under the aforesaid provision. 10. To our mind reading of the provisions contained in Section 21 in isolation would not be appropriate as for better understanding Section 18 of the said Act is also required to be reconciled. The aforesaid Section does not create any pecuniary limits in exercise of jurisdiction by the Civil Judge (Senior Division) but a reasonable restriction can be manifestly seen by reference of Section 15 of the Code of Civil Procedure providing that every suit should be instituted in the Court of lowest grade competent to try it. 11. The aforesaid Section does not create any pecuniary limits in exercise of jurisdiction by the Civil Judge (Senior Division) but a reasonable restriction can be manifestly seen by reference of Section 15 of the Code of Civil Procedure providing that every suit should be instituted in the Court of lowest grade competent to try it. 11. By virtue of Section 18 of the said Act the Civil Judge (Senior Division) has been bestowed with the power to act as a Court of lowest grade in view of value of the claims made in the suit which can be further fortified with the provisions contained under Section 19 of the said Act confining the jurisdiction of the Civil Judge (Junior Division) in relation to the suit having a value of Rs. 60,000/- or less. 12. As a corollary effect the suit valued more than Rs. 60,000/- can only be filed before the Civil Judge (Senior Division); which would be regarded as a Court of lowest grade and shall be the Court of first instance for the purpose of execution. 13. A point has been taken by Mr. Bose, learned Advocate, that since the application under Order XXI Rule 97, 98, 100 and 101 read with Section 151 of the Code is valued at Rs. 100/- it comes within the ambit of Clause (a) of Section 21 (1) of the said Act and, therefore, an appeal would lie before the District Judge. The aforesaid contention gets inspiration from the fact that an appeal was filed before the District Judge and the District Judge entertained the same and ultimately disposed of by passing a reasoned order. 14. Our attention is drawn to an order no. 6 dated February 25, 2022 passed by the District Judge, 24-Parganas, in Title Appeal Case No. 5 of 2022 in support of the aforesaid contention. It appears from the findings made in the said order that the Memorandum of Appeal was valued at Rs. 100/- by Mr. Bose’s client and a serious objection was raised at the behest of the decree-holder, i.e. Mr. Mookherjee’s client and the District Court postponed the determination in this regard and, it cannot be said that the decree-holder submitted to the jurisdiction of a District Court and, therefore, by such conduct they are estopped from questioning the jurisdiction of the District Judge. 15. Mookherjee’s client and the District Court postponed the determination in this regard and, it cannot be said that the decree-holder submitted to the jurisdiction of a District Court and, therefore, by such conduct they are estopped from questioning the jurisdiction of the District Judge. 15. The remedy of appeal originates from the provision of a statute. The forum of an appeal is also an outcome of the statute. It is a trite law that the jurisdiction of the Court cannot be created by consent of the parties nor by virtue of an agreement if the Court lacks pecuniary, territorial and plenary/inherent jurisdiction, i.e. the jurisdiction in relation to a subject matter of dispute. 16. We are not impressed with the aforesaid submission of Mr. Bose that the appeal filed by his client was entertained by the District Judge and, therefore, the appeal at the behest of the decree-holder would not lie before the High Court. The nature of jurisdiction exercised by the Executing Court, in relation to a dispute raised before it, is required to be considered on the jurisdiction exercised by the Executing Court in relation to value of reliefs claimed in the original suit. Order XXI Rule 101 of the Code does not postulate the valuation of the reliefs to be done as required to be done in case of a suit having filed before the Court. 17. The reason is obvious. In case of institution of a suit and the reliefs claimed therein, the jurisdiction exercised by the Court is dependant not only upon the jurisdiction in relation to the subject dispute but on territorial aspect as well and above all in view of the provisions contained under the aforesaid Act the pecuniary limits shall also be one of the factors. 18. The aforesaid Act has made a distinction in exercise of the jurisdiction by the Court in its hierarchy on the basis of pecuniary values of the reliefs and, therefore, the provision of an appeal has to be construed in such perspective and precisely for such reason the valuation of an application under Order XXI Rule 101 of the Code is unwarranted, as the third party can never approach any other forum except the Executing Court. 19. Such being the laudable intention of the legislatures, we are unable to appreciate the endeavour made by Mr. 19. Such being the laudable intention of the legislatures, we are unable to appreciate the endeavour made by Mr. Bose in interpreting the aforesaid provision that the appeal would lie before the District Judge and not to the High Court. 20. Having held so, as a last gasping resort Mr. Bose took a preliminary objection that the instant appeal cannot be registered as First Miscellaneous Appeal in view of the provisions contained under Rule 103 of Order XXI of the Code. There is no quarrel to the effect that the adjudication made under Rule 101 of Order XXI of the Code and the orders so passed shall be treated as a deemed decree by virtue of the provisions contained under Rule 103 of Order XXI of the Code. The nomenclature of appeal has no role nor be regarded as a determining factor in exercising the jurisdiction by the High Court. Even if it is a First Appeal or a First Miscellaneous Appeal, it would lie before the High Court in view of Clause (b) of Sub-Section (1) of Section 21 of the said Act and the only distinction one can visualize is the quantum of Court Fees leviable thereupon. 21. The categorization of an appeal is done on the basis of the Rules framed by the High Court though right of an appeal emanates from the statutory provisions. Mr. Bose is very much vocal in this regard getting inspiration from the judgment of the Full Bench of Andhra Pradesh High Court rendered in case of Gurram Seetharam Reddy vs. Smt. Gunti Yashoda and Another, 2004 (3) A.P.L.J. 251 (HC) wherein it is held that a regular appeal under Section 96 would lie against an order passed under Order XXI Rule 101 of the Code. 22. The Calcutta High Court framed Rules in exercise of power conferred under Section 122 and 125 of the Code of Civil Procedure providing several procedures including the categorization of an appeal filed before this Court. Chapter V of Rule 17 of the Appellate Side Rules is indicative of such categorization of appeals and posting such appeal for admission under Order XLI Rule 11 of the Code. The said provision is quoted as under: Chapter V Rule 17. Chapter V of Rule 17 of the Appellate Side Rules is indicative of such categorization of appeals and posting such appeal for admission under Order XLI Rule 11 of the Code. The said provision is quoted as under: Chapter V Rule 17. The officer to whom the memorandum is presented under Rule 14 of this Chapter shall endorse on every such Memorandum the date of the presentation and shall send the same to the Stamp Reporter. The Stamp Reporter, if the memorandum is not barred by limitation and is sufficiently stamped and complies with the provisions of these Rules, shall record a Report to that effect and shall, after the Officer - in - Charge of the Judicial Department has scrutinised the Memorandum and has satisfied himself that the stamps have been properly punched and defaced under the Rules and that there are no obvious defect: (a) in the case of an Appeal from an Original Decree, an Appeal under the Workmen's Compensation Act, an Appeal from an Order under Article 226 of the Constitution [an Appeal under the Indian Railways Act, 1890 (Act 4 of 1890), an Appeal under the Motor Vehicles Act, 1988], an appeal preferred under section 37(I)(b) of the Arbitration and Conciliation Act, 1996 thereby setting aside an arbitral award under section 34 of the said Act, a First appeal against a “deemed decree” provided in any statute, if the said “deemed decree” is not passed in execution proceedings, admit it and cause it to be registered and Notice to issue to the Respondent. (b) in the case of an Appeal from an Appellate Decree or an Appeal from an Order, other than an Appeal under the Workmen's Compensation Act, an appeal from an order under Article 226 of the Constitution, [an appeal under the Indian Railways Act, 1890 (Act 4 of 1890), an Appeal under the Motor Vehicles Act, 1988] and first appeal against deemed decrees passed in execution proceedings, second appeal against deemed decree, all appeals under section 39 of the Arbitration Act, 1940, all other appeals under section 37 of the Arbitration and Conciliation Act except the appeals preferred under section 37(1)(b) thereby setting aside an arbitral award under section 34 of the said Act admit it, cause it to be registered, and posted to a Bench for hearing under Order XLI, Rule 11, Civil Procedure Code. (c) in the case of a memorandum of Objection under Order XLI, Rule 22 or 26, Civil Procedure Code, admit it and cause it to be registered. 23. Clause (a) thereof indicates that in case of an appeal from original decree or an appeal under the specified Act as mentioned therein and a First Appeal against a deemed decree provided in any statute shall be registered as a regular Appeal and does not require an admission by the Division Bench. However, an exception is carved out therefrom that if the said deemed decree is not passed in the execution proceeding meaning thereby that the First Appeal would lie against a deemed decree provided such deemed decree is not passed by the Executing Court or in an Execution Proceeding. 24. The identical question arose before the Division Bench of this Court in case of Surajmal Jain vs. Prabir Kumar Sett, 1980 (2) CLJ 161 and it is held: 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 Rue 11 of the Code of Civil Procedure. 25. Though the Full Bench judgment of Andhra Pradesh High Court has a persuasive value but a judgment has to be understood in the perspective of the facts and the relevant rules applicable in this regard. The Appellate Side Rules of this Court has a statutory force having framed in exercise of rule making power enshrined under Section 122 and 125 of the Code of Civil Procedure and, therefore, if their categorization has been restricted, the ratio laid down in the judgment rendered by the Full Bench of Andhra Pradesh High Court has no manner of application in the instant case. Following the path shown by the Division Bench way back in 1980 which in our opinion is also in conformity with the provisions contained under Chapter V of Rule 17 of the Appellate Side Rules, we do not find any incongruity in registering the instant appeal as First Miscellaneous Appeal. 26. Both the points urged by Mr. Bose fail. It is held that the appeal is maintainable before this Court in the manner and form. 27. The instant appeal is formally admitted. 28. Considering the length of litigation, we invited both the Counsels to address us on the merit of the instant appeal. 29. Let this matter be listed on March 14, 2024. 30. In the meantime both the parties shall prepare compilation of relevant documents including the depositions, if there be any, of the respective parties.