(Prayer: The Appellant therefore respectfully prays that this Honble court may be pleased toallow the appeal and set aside the ORDER AND DECRETAL ORDER DATED09.12.2025 PASSED IN E.A.N0.6 of 225 in E.P.N0.1776 of 2023 in O.S.NO.13444 of2010, ON THE FILE OF X ASSISTANT CITY CIVIL COURT and thus render justice.)

(1) The Appeal in AS.SR.No.3708/2006 is posted before this Court today ‘’for Maintainability’’.

(2) The Registry, after scrutinising the papers, returned the same to the learned counsel for the appellant for the following reason:-

                     ‘’It may be stated how the appeal is maintainable under Order 43 Rule 1 and Section 96 of CPC against the order made in EA.No.6/2025 passed by X Assistant City Civil Court, Chennai.’’

(3) Since the Registry entertained the above doubt, regarding maintainability of the Appeal Suit, the matter is placed before this Court.

(4) The learned counsel for the appellant, relying on the judgment of the Hon’ble Supreme Court dated 29.02.2006, in Appeal [Civil] No.1417/2001, [S.Rajeswari Vs. S.N.Kulasekaran and Others] and the judgment of a learned Single Judge of this Court, dated 07.08.2017, in CRP.[NPD][MD].No1218/2017 [V.Shanmuganathan and Others Vs. C.Ramamoorthy and Others], submitted that only a regular appeal will lie against the fair and decreetal order dated 09.12.2025 passed in EA.No.6/2025 in EP.No.1776/2023 in OS.No.13444/2010.

(5) The issue before the Hon’ble Supreme Court was whether a revision petition under Section 115 of CPC would lie against an order passed under Order 21 Rule 97 of CPC. The Apex Court, while considering the issue, held that the revision petition was not maintainable and only a appeal was provided under Order 21 Rule 103 of CPC, which treated the order passed by the Execution Court as a decree subject to the same conditions as to the appeal against such a decree.

(6) The learned Single Judge of this Court in Shanmuganathan’s case [referred to above in CRP.[NPD].No.1218/2017], following the aforesaid Apex Court judgment, held that the revision petition filed against an order passed under Order 21 Rule 97 of CPC, was not maintainable and only an appeal could be filed.

(7) The learned counsel for the appellant, relying on the aforesaid judgments, submitted the appeal filed by the appellant in AS.SR.No.3708/2026, was maintainable.

(8) Heard the learned counsel for the appellant and perused the materials placed on record.

(9) Similar issue came up for consideration before a Division Bench of this Court on 25.07.2024, in CMP.No.8712/02024 in CMA.SR.No.39500/2024 and CMA.No.910/2024 [S.Komathi and Others Vs. M.Balasubramanian and Others]. The Division Bench, while considering the issue, discussed the various provisions of the Code of Civil Procedure relating to the definition of a ‘’decree’’, appeals under Sections 96 and 104 of CPC and Rule 103 of Order 21 of CPC. The Division Bench, while upholding that only an appeal would lie against an order passed under Order 21 Rule 97 of CPC, further held that an appeal would lie only under Section 104 of CPC. The Court was of the view that the regular practice of this Court in numbering the appeals against the orders passed by the Executing Court under Order 21 Rule 97 to 101 of CPC, as Civil Miscellaneous Appeals, under Section 104 of CPC, definitely partook the character of the law in this Court. It is seen that in the aforesaid judgment of the Hon’ble Supreme Court, in the last paragraph, it was observed as follows:-

                     ‘’Learned Senior Counsel appearing on behalf of respondent No.1 submitted that the respondent No.1 was ill advised to prefer a revision petition before the High Court instead of an appeal. He submitted that it is still open to the respondent No.1 to move the High Court by way of an appeal. We express no opinion in the matter and we leave it to parties to seek such remedy as may be available to them in accordance with law. This appeal is accordingly allowed.’’

(10) The Hon’ble Supreme Court left it to the party to seek remedy as per law and issued direction to file an appeal in accordance with law. Since the law has now been clarified by the Division Bench in CMP.No.8712/02024 in CMA.SR.No.39500/2024 and CMA.No.910/2024, that only a Civil Miscellaneous Appeal will lie, the Registry is justified in raising a doubt as to the maintainability of the appeal filed under Section 96 of CPC.

(11) In view of the above discussions and in the light of the law enunciated by the Hon’ble Division Bench in the aforesaid order in CMP.No.8712/02024 in CMA.SR.No.39500/2024 and CMA.No.910/2024, this Court is of the view that an appeal under Section 96 of CPC is not maintainable and only a Civil Miscellaneous Appeal under Section 104 of CPC is maintainable. The appellant is directed to represent the appeal under Section 104 of CPC.

(12) The Registry is directed to number the Civil Miscellaneous Appeal, if the papers are otherwise in order and list the same for admission on 13.03.2026.