ORDER
R.M.S. Khandeparkar, J.
1. This is an appeal against the order dated 11th December, 1995, passed by the Civil Judge, Senior Division, Panaji, in Execution Application No. 29/86/A. By the impugned order, the application of the decree-holders dated 23rd February, 1993, for attachment of goods lying in the shop of the judgment-debtors situated near the Head Post Office at Panaji was allowed and the goods therein were ordered to be attached. Aggrieved by the said order, the appellants have filed the present appeal mainly on the ground that the shop in question was in possession of the appellant No. 1 pursuant to a registered Gift Deed dated 6th April, 1972, by the original judgment debtor late Joaquim Milagres Piedade Dias and his wife late Angela Dias and that, therefore, the trial Court erred in allowing the application and ordering the attachment of the said goods lying in the said shop.
2. Shri S.S. Usgaonkar, learned Advocate appearing for the respondent Nos. 1 to 3, who are the decree-holders, sought to raise a preliminary objection regarding the maintainability of the appeal on the ground that the impugned order is not appealable. On the other hand, Shri L.V. Talaulikar, learned Advocate appearing for the appellants, submitted that the impugned order having been passed in exercise of powers under Order XXI, Rule 58(3) and the provisions contained in section 50 of C.P.C., the impugned Order is deemed to be a decree and, therefore, is an appealable order. Without prejudice to this submission, Shri Talaulikar further submitted that in case the appeal is not maintainable, then the appellants should be permitted to convert the same into a revision application as the impugned Order is dated 11th December, 1995, and an attempt on the part of the appellants to file a revision application at this time will be barred by the law of limitation.
3. Upon hearing the Advocates for the parties and on perusal of the records, it is seen that the respondents 1 to 3 herein filed a suit for recovery of a sum of Rs. 40,000/- from the original judgment-debtors, namely, late Joaquim Milagres Piedade Dias and late Mrs. Angela Dias. During the pendency of the application it appears that the original judgment-debtors expired and their legal representatives were brought on record. The appellants are the legal representatives of the original judgment-debtors. During the pendency of the said execution proceedings, the respondents 1 to 3 filed an application dated 23rd February, 1993, praying for attachment of the goods of the judgment-debtors lying in the shop under the name and style of ‘J.M.P. Dias’ situated near Head Post Office, Panaji. The said application was objected to by the legal representatives of the original judgment-debtor Mrs. Angela Dias, on the ground that no property of the deceased judgment-debtor Angela Dias had come in the hands of the legal representatives and that the suit shop was gifted by the said Angela and her husband Joaquim to their son, the appellant No. 1 herein by a Deed of Gift dated 6th April, 1972, besides, it was also submitted that in any case liability of the legal representatives cannot exceed 1/10th of the decretal amount. The Executing Court, after hearing the parties, by the impugned order
held that there is no dispute as regards the fact that the appellants and the respondent Nos. 6 onwards to be the legal representatives of the said Angela and, therefore, they step in the shoes of the original judgment-debtor. The Executing Court, therefore, while rejecting the objection raised by the appellants allowed the application dated 23rd February, 1993, and ordered the attachment of goods in the shop under the name and style of ‘J.M.P. Dias’ situated near Head Post Office, Panaji, in order to satisfy the decree.
4. Order XXI, Rule 58 of C.P.C. deals with the matters pertaining to adjudication of claims to, or objections to attachment of the property. It provides that 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 contained in the said rule. The proviso to sub-rule (1) provides that no such claim or objection shall be entertained by the Court where the property attached has already been sold or where the Court considers the claim or objection to have been raised only for the purpose of delaying the execution. Sub-rule (2) of the said Rule 58 provides that all questions, including questions relating to right, title, 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. In other words, sub-rule (1) and (2) of Rule 58 of Order XXI of C.P.C. provides that whenever any property is attached in an execution of a decree, if any party prefers a claim or raises an objection to such attachment of the property attached, then all questions pertaining to the right, title or interest in the property so attached shall be decided by the Court while dealing with such claim or objection and the same cannot be decided by way of a separate suit. Sub-Rule (3) of Rule 58 reads thus:-
“(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 or other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.”
The above sub-rule, therefore, clearly discloses that the determination of the claim or objection raised to the attachment of the property can result in either allowing the claim or objection and releasing the property attached or disallowing the claim or objection or continue the attachment of the property subject to the mortgage, charge or other interest in favour of any person or pass any other order which in the circumstances may be deemed fit and proper. It is thus clear that the adjudication of any claim or objection to be dealt with under Rule 58 pertains to the property which has already been attached in execution proceedings and it does not relate to any property which is yet to be attached in such proceedings.
5. In order to enable a party to file an appeal against an order passed under Rule 58 of Order XXI, it is necessary that such an order must be in
terms of the provisions contained in sub-rules (1), (2) and (3) of Rule 58 of Order XXI of C.P.C. This is also clear from sub-rule (4) of the said Rule 58 which provides that 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. The rule therefore provides that the order passed on adjudication of a claim or objection to the attachment of property attached shall be deemed to be a decree for the purpose of appeal. Moreover, as already observed above, an order of adjudication of a claim or objection to the attachment of the property under Rule 58 of Order XXI C.P.C. can be only when the property is attached and not otherwise. Considering the provisions of law as discussed above and as contained in Rule 58 of Order XXI of C.P.C. it is clear that the impugned order has not been passed after attachment of the property and in fact by the impugned order the Court has ordered the attachment of the property itself. The contention of Shri Talaulikar, therefore, that the impugned order has been passed under Order XXI, Rule 58 is devoid of substance and has to be rejected. By the impugned Order, the trial Court has directed the attachment of the goods and being so, it cannot be said that it is a decree and for the same reason the impugned Order cannot be said to have been passed in exercise of powers under Order XXI, Rule 58. Being so, the provisions of sub-rule (4) of Rule 58 are not at all attracted and the impugned Order cannot be said to be a decree. Hence, the impugned order is not an appealable order and for the same reason the appeal in question is not maintainable.
6. Indeed, Shri Talaulikar without prejudice to his argument that an appeal is maintainable has also submitted that in case this Court arrives at a conclusion that the appeal is not maintainable, the appellants be permitted to convert the same into a civil revision application. On perusal of the records and more particularly the impugned Order, it is seen that the trial Court has ordered the attachment of the goods in the shop. The same has been done pursuant to the application filed by the respondents on 23rd February, 1993. Though the appellants had filed a reply to the said application, nowhere in the said reply appellants had sought to dispute the right of the decree holder to seek the attachment of the goods in the shop except stating that the appellants as Legal Representatives had not received anything from the original judgment debtor Smt. Angela Dias and that the liability, if any, under any circumstances, could not exceed 1/10th of the decretal amount. In other words, there was no serious challenge thrown by the appellants to the attachment of the goods sought for by the decree holders. Even otherwise, by the impugned Order what the Executing Court has held is that there is no dispute that the appellants and the respondent Nos. 6 onwards are the legal representatives of the original judgment-debtor and that therefore they step in the shoes of the original judgment-debtor. In the circumstances, it cannot be said that there is any illegal exercise of jurisdiction by the Executing Court in passing the impugned Order. In this view of the matter, there is no scope for interference in the exercise of revisional jurisdiction by this Court and hence, there is no case made out for permitting the appellants to convert this appeal into a revision application.
7. In this view of the matter, nothing survives in this appeal and the same is liable to be dismissed. The same is, accordingly hereby, dismissed with costs. However, this shall not preclude the appellants from defending their
rights, if any, available under the law and more particularly in terms of Order XXI, Rule 58 of Civil Procedure Code. Interim relief, if any, stands vacated.
Appeal dismissed.