JUDGMENT : M.A. ABDUL HAKHIM, J. 1. The appellants are the respondents in Review Petition No.1/2013 in C.M.A.No.6/2010 on the files of the Third Additional District Court, Ernakulam. As per the impugned order dated 04.04.2015, the District Court allowed the Review Petition setting aside its Order dated 27.02.2013 in C.M.A.No.6/2010 in which it is held that the C.M.A. is not maintainable and further directed to close the C.M.A and re-register the C.M.A. as Regular Appeal under Section 96 of the Code of Civil Procedure. 2. The short facts necessary for the disposal of this Appeal alone are stated: O.S.No.562/1957 was filed for the cancellation of a document and recovery of possession of the plaint schedule property. The said suit was decreed. The defendants filed an Appeal before the Appellate Court as A.S.No.170/1967. During the pendency of the Appeal, the defendants 2 & 3, who were the appellants therein, died and their legal heirs were impleaded in the Appeal. The Appeal was dismissed confirming the judgment and decree of the Trial Court. The plaintiffs/decree holders put the decree in execution by filing E.P.No.367/1981. Two of the legal heirs of the defendants 2 and 3, who were the parties in A.S.No.170/1967, were not made parties in the E.P. One of such legal heirs got himself impleaded as additional respondent in the E.P. The other legal heir, namely, M.K. Divakaran, filed E.A.No.579/2009 seeking permission to file an Objection to the E.P. E.A.No.579/2009 was allowed. The property was ordered to be delivered on 27.10.2009. Then he obstructed delivery and filed another E.A.No.591/2009 under Order 21 Rule 97 CPC. He raised two contentions in E.A.No.591/2009. First was that the decree is sought to be executed without impleading him in the Execution Petition. Second is that he is having an independent right over the plaint schedule property. The Execution Court dismissed E.A.No.591/2009 as per the order dated 03.11.2009. The petitioner in E.A.No.591/2009 filed C.M.A.No.6/2010 before the Appellate Court. The Appellate Court dismissed the said C.M.A as per the order dated 27.02.2013 holding that CPC does not allow a Civil Miscellaneous Appeal against an order passed by the Execution Court under Order XX1 Rule 35 C.P.C. Thereafter, the petitioner in E.A.No.591/2009 filed R.P.No.1/2013 and the Appellate Court passed the impugned order allowing the Review Petition. The Appellate Court dismissed the said C.M.A as per the order dated 27.02.2013 holding that CPC does not allow a Civil Miscellaneous Appeal against an order passed by the Execution Court under Order XX1 Rule 35 C.P.C. Thereafter, the petitioner in E.A.No.591/2009 filed R.P.No.1/2013 and the Appellate Court passed the impugned order allowing the Review Petition. In the impugned order, the Appellate Court relied on the decision of the Hon’ble Supreme Court in Barkat Ali and Another v. Badri Narain (D) by LRs. AIR 2008 SC 1272 and held that an appeal against an Order XX1 Rule 35 is maintainable. It is also held that in view of the said ruling, the order passed in an Execution Petition amounts to a decree and the same is appealable. The further finding is that the office ought to have registered the Appeal as a Regular Appeal filed under Section 96 CPC instead of registering the same as C.M.A. On account of the aforesaid reasons, it is found that there is an error apparent on the face of the order passed in C.M.A. The order in C.M.A was set aside and the C.M.A is directed to be re-registered as a Regular Appeal. 3. I heard the learned counsel for the appellants, Sri. K.V. Jayachandran, the learned counsel for the respondents 2 to 4, Smt. P.P. Stella and the learned counsel for the 5 th respondent, Smt. Savitha G. 4. Since the learned counsel for respondents 2 to 4 raised a preliminary objection as to the maintainability of this Appeal that, as on the date of the appeal, the appellants did not have a subsisting interest in the plaint schedule property, I shall deal with the said contention first. The learned counsel for the respondents 2 to 4 contended that, in answer to I.A. No. 3 of 2018 for impleading the legal heirs of the deceased original respondent, the respondents 2 to 4 filed Counter Affidavit stating that the appellants have transferred the property, as per Sale deed No. 1084/2011 to one T.R. Sadananda Bhat and hence, as on the date of the appeal, the appellants did not have subsisting interest in the property. On going through the Counter Affidavit dated 18.02.2019 filed by the respondents 2 to 4 in I.A. No. 3 of 2018, it is seen that the contention of the respondents 2 to 4 itself is that the said document is a sham and bogus document and the same was executed suppressing the pendency of the appeal. So, even according to their contentions, the alleged document is not a valid document. That apart, in support of the said contention, the respondents did not produce any document to show that as on the date of filing of the appeal, the appellants did not have any subsisting right in the said property. Hence, I find that the appeal is not liable to be dismissed on the ground that the appellants did not have any subsisting right in the property. 5. The contention of the appellants is that there was no error apparent on the face of the record in the Order dated 27.02.2013 in C.M.A. No. 6/2010 and that the Appellate Court acted illegally in holding that there is error apparent on the face of the record in the said Order. The learned counsel cited the decision of the Hon’ble Supreme Court in Parsion Devi and Others v. Sumitri Devi and Others, 1997 (8) SCC 715 and State of Telangana v. Mohd. Abdul Qasim, 2024 KLT OnLine 1386 and the decision of this Court in Mohammedkutty v. Mammukutty, 1996 KHC 515 in support of his contention. The learned counsel further contended that the finding in the impugned order that the order passed in E.A. No.591/2009 is appealable is clearly unsustainable. The learned counsel invited my attention to the definition of decree in Section 2(2) CPC to point out that Section 47 is omitted by the 1977 Amendment Act and relied on the decision of this Court in Lailamma Vasudevan v. Muthoot Vehicles & Assets Finance Limited, 2023 (7) KHC 276 to substantiate the point that there is no appeal against an order under Section 47 CPC. 6. On the other hand, the learned counsel for respondents 2 to 4 contended that the nature of the order in E.A. No.591/2009 is to be considered with relevance to the pleadings in E.A. No.591/2009. 6. On the other hand, the learned counsel for respondents 2 to 4 contended that the nature of the order in E.A. No.591/2009 is to be considered with relevance to the pleadings in E.A. No.591/2009. The petitioner in E.A. No.591/2009 had the specific case that he is claiming an independent right over the property, apart from his contention that he was not impleaded in the E.P. In such a case, the order passed is a deemed decree under Order 21 Rule 103 and hence regular appeal is maintainable before the Appellate Court. The learned counsel invited my attention to the decision of the Hon'ble Supreme Court in Barkat Ali (supra) , relied on by the Appellate Court in the impugned order in this regard. 7. The learned counsel for the 5 th respondent contended that the order passed in E.A. No.591/2009 is one under Order 21 Rule 58 (3) CPC, and hence it is a deemed decree under Order 21 Rule 58(4), appealable before the Appellate Court. The learned counsel relied on the decision of the Rajasthan High Court in Civil Writ Petition No.16898/2023 in support of her contention. 8. I have considered the rival contentions. 9. Three questions arise for consideration in this appeal. Firstly, whether there is an error apparent on the face of the record in the Order dated 27.02.2013 in C.M.A. No.6/2010 as found in the impugned order by the Appellate Court. Secondly, whether an appeal is maintainable against the Order in E.A. No.591/2009. Thirdly, whether the Appellate Court is justified in directing to re-register the C.M.A filed before it, as a Regular Appeal. 10. Let me examine the second question first. Admittedly, the petitioner in E.A. No.591/2009 is a legal heir of the original defendants 2 and 3. E.P. was filed without impleading him as a party in the E.P. No.367/1981. He filed E.A. No.579/2009, seeking to file an objection to the Execution Petition and the same was allowed. But, when the delivery was sought to be effected, he filed E.A. No.591/2009 under Order 21 Rule 97 CPC. Even though he has filed the petition under Order 21 Rule 97, I am of the view that Order 21 Rule 97 is available only to the decree holder to remove the obstruction caused by any person in obtaining possession of the property. Even though he has filed the petition under Order 21 Rule 97, I am of the view that Order 21 Rule 97 is available only to the decree holder to remove the obstruction caused by any person in obtaining possession of the property. When a third party has a complaint against the execution of the decree for possession, his right is only under Order 21 Rule 99 CPC. Even though Order 21 Rule 99 CPC provides that the petition has to be filed only after the dispossession complaining dispossession, in view of the decision of the Hon'ble Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Another, (1997) 3 SCC 694 it is well settled that the third party can file petition in anticipation of delivery under Order 21 Rule 99 CPC. Hence, E.A.No.591/2009 is to be construed as an Application under Order 21 Rule 99 CPC. E.A. No.591/2009 is filed by the petitioner on two grounds. The first ground is that he was not made a party in the Execution Petition. The second ground is that he is having independent right over the property. When a petition is received either under Order 21 Rule 97 or under Order 21 Rule 99, the Court need not conduct a full-fledged trial in all cases. Of course, as per Order 21 Rule 101, all questions (including the questions relating to right, title or interest in the property) arising between the parties to the petitions under Order 21 Rule 97 or 99 CPC shall be determined by the Court dealing with the petition and not by a separate suit. It would indicate that the nature of determination under petitions under 21 Rule 97 or 99 CPC is one and the same. The determination is akin to the suit as the Order adjudicating those petitions passed under Rule 98 or 100 is a deemed decree as per Order 21 Rule 103. But a full-fledged adjudication is not required in all cases when the Execution Court receives a petition either under Rule 97 or Rule 99 of Order 21 CPC. Order 21 Rule 35 (1) CPC provides that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, if necessary, by removing any person bound by the decree who refuses to vacate the property. Order 21 Rule 35 (1) CPC provides that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, if necessary, by removing any person bound by the decree who refuses to vacate the property. In view of this provision, if resistance or obstruction is made by a person who is bound by the decree, the Execution Court has to execute the delivery straight away by removing such resistance or obstruction without undertaking a full-fledged trial. So, when the Execution Court receives a petition either under Rule 97 or Rule 99 of Order 21 CPC, at first, the Execution Court has to conduct an enquiry under Order 21 Rule 35 CPC, to find out whether the resistance or obstruction is made by a person bound by the decree. In such an enquiry, if it is found that the resistance or obstruction is caused by a person who is bound by the decree, the Execution Court can remove the obstruction under Order 21 Rule 35 CPC without resorting to a full-fledged trial. Only if it is found that resistance or obstruction is caused by a person who is not bound by the decree, a full-fledged trial as required under Order 21 Rule 101 CPC is required. The order passed after adjudication required under Order 21 Rule 101 CPC alone will be a deemed decree under Rule 103. The Order passed under Order 21 Rule 35 CPC will not be a decree. In the order passed in E.A. No.591/2009, it is seen that the Execution Court has not conducted a full-fledged adjudication. It is found that the petitioner, who is one of the legal heirs of the judgment debtor, cannot have an independent claim over the property. It is also found that the Execution Petition was strongly contested by the other legal heirs of the deceased judgment debtor, only at the far end of the execution, the petitioner has filed the present application. There is another finding that the petitioner is pretending ignorance of all early proceedings, and that itself is mala fide. The findings are to the effect that the petitioner is a person bound by the decree. Thus, the order passed in E.A. No.591/2009 can only be treated as an order passed under Order 21 Rule 35 CPC. 11. There is another finding that the petitioner is pretending ignorance of all early proceedings, and that itself is mala fide. The findings are to the effect that the petitioner is a person bound by the decree. Thus, the order passed in E.A. No.591/2009 can only be treated as an order passed under Order 21 Rule 35 CPC. 11. Then the question arises whether the order passed under Order 21 Rule 35 amounts to a decree to entertain a regular appeal. Under Order 21 CPC, only two types of orders are treated as decrees to file an appeal against them. One is under Rule 58(4), the other is under Rule 103. There is no provision in Order 21 CPC to treat the order under Rule 35 as a decree. Hence, a regular appeal could not be filed against an order under Order 21 Rule 35 CPC. 12. Another contention of the counsel for respondents 2 to 4 is that the order passed in E.A. No.591/2009 is an order passed under Section 47 CPC. Even assuming that, it is an order passed under Section 47, by deletion of ‘Section 47’ from the definition of decree under Section 2(2) as per the 1977 CPC Amendment, the order under Section 47 CPC could not be treated as a decree to enable the filing of an appeal. 13. The learned counsel for the respondents 2 to 4 relied on Section 99A CPC and contended that appeal is maintainable against an order under Section 47 CPC. 13. The learned counsel for the respondents 2 to 4 relied on Section 99A CPC and contended that appeal is maintainable against an order under Section 47 CPC. The said question was considered by the Division Bench of this Court in Lailamma (supra) and held that a right of appeal is a statutory right; that right of appeal inheres in no one; that when conferred by statute alone it becomes a vested right; that an adjudication on a question as is referred to in S.47 of the Code cannot be assailed in an appeal under S.96 of the Code; that such an order is not appealable under S.104 of the Code; that it cannot be said that by incorporating S.99A, an order under S.47 was made appealable; that S.99A of the Code may apply to the proceedings possible under whatever corrective jurisdiction available under the Code, but it cannot be interpreted to mean that an appeal shall lie against an order under S.47 of the Code; that it is unable to accept the contentions of the appellants that on account of insertion of S.99A in the Code, and in the light of S.97(2)(a) of the Amendment Act of 1976 an appeal against an order under S.47 is possible, notwithstanding deletion of the words "S.47" from the definition of decree in S.2(2) of the Code. 14. In view of the definition of the decree in Section 2(2) and the aforesaid authoritative pronouncement of the Division Bench of this Court, I am of the view that even if the order in E.A. No.591/2009 is construed as an order under Section 47, it is not appealable. 15. The learned counsel for the 5 th respondent contended that the order passed in E.A. No.591/2009 has to be construed as an order under Order 21 Rule 58 CPC. In the case on hand, the decree is for possession of property, hence there is no need for attachment to execute the decree. Order 21 Rule 58 CPC is applicable only if there is an attachment over the property. Hence, the said contention is also not sustainable. 16. The finding in the impugned order that there is an error apparent on the face of the record in the order passed in C.M.A. in which it is held that the appeal is not maintainable. Order 21 Rule 58 CPC is applicable only if there is an attachment over the property. Hence, the said contention is also not sustainable. 16. The finding in the impugned order that there is an error apparent on the face of the record in the order passed in C.M.A. in which it is held that the appeal is not maintainable. The Appellate Court relied on the decision of the Hon’ble Supreme Court in Barkat Ali (supra) , to hold that an appeal is maintainable against an order passed under Order 21 Rule 35 CPC and to hold that the order passed in an Execution Petition amounts to a decree and the same is appealable. On going through the said decision of the Hon’ble Supreme Court in Barkat Ali (supra), I do not find any such finding in the said decision. Hence, those findings in the impugned order are unsustainable. It is well settled by the decision of this Court in Mohammedkutty (supra) that an omission on the part of the Court to consider an earlier decision either by mistake or inadvertence is not a ground to maintain a review and that merely because a ground was not argued or alternative situations were not placed before the Court cannot be a ground for review. Hence, the aforesaid decision cannot be ground for review on the ground that there is an error apparent on the face of the record. Hence, I am of the view that the Appellate Court ought not to have entertained the R.P. No.1/2013. Since I have already found that the appeal against the order in E.A. No.591/2009 is not maintainable, there is no question of re-registering the C.M.A. as a regular appeal. 17. In view of the aforesaid findings, I allow this appeal without costs, setting aside the impugned order in R.P. No.1/2013 and restoring the order dated 27.02.2013 in C.M.A. No.6/2010. The right of the respondents 2 to 4 to challenge the order in E.A. No.591/2009 in appropriate proceedings is left open.