ORDER
1. In this application under Section 115 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) a quest ion arises as to whether a person whose claim is negatived by the Court under Order 38, Rule 8 of the Code can maintain a revision application before this Court or his remedy lies by way of appeal.
2. The opposite party No. 1 filed a suit praying for a money decree against the opposite party No. 2 and got attachment of certain immovable properties before judgment. The petitioner, not a party to the suit, preferred a claim under Order 38, Rule 8 of the Code. The parties led evidence. The court below rejected the petitioner’s claim by an order impugned before us.
3. If Sub-rule (4) of Order 21, Rule 58 of the Code be held to apply to the case, the petitioner should have filed an appeal before the District Judge; and this revision application must be dismissed as being not maintainable.
4. Before the amendment of the Code of Civil Procedure in 1976, Rules 58 to 68 of Order 21 dealt with the investigation of claims and objection in execution. The Rule 8 of Order 38 of the Code provided that where any claim was preferred to property attached before judgment, the same should be investigated in the manner hereinbefore provided for investigation of claims to property attached in execution of a decree for the payment of money. The reference was to the Rules 58 to 63 of Order 21. By the 1976 amendment, the examination and decision of the claims both in Order 21 and Order 38 have been described by the expression ‘adjudication’ in place of ‘investigation’; but we do not think that this amendment has in any way affected the nature of the proceeding. Order 38. Rule 8 of the Code, even after amendment, refers, for adjudication of the claims, to the manner provided for, in Order 21. The Amendment has, however, introduced some material modification in the relevant provisions of Order 21. Rules 59 to 63 have been repealed and all the provisions relating to the adjudication of the claim have been incorporated in Rule 58 itself. Omitting the difference in the two sets of procedure, that is, before and after the amendment, which is not material for the present case, it will be observed that Rule 63 required the party against whom an order in the investigation was made to institute a suit to establish his claim. Now the remedy has been provided by way of an appeal under Sub-rule (4) of Rule 58 treating the order complained of as a decree.
5. The petitioner has filed the present application before the High Court on the ground hat the impugned order is not appealable under Order 43, Rule 1 of the Code. It is true that the order has not been made appealable under this provision but that does not solve the problem. The question is as to whether Order 21, Rule 58 Sub-rule (4) applies.
6. The controversy whether Rule 63 of Order 21 applied to the investigation under Order 38. Rule 8 had engaged the attention of the Courts for sometime but later it was resolved by answering the question in the affirmative. In Mallikharjuna Prasada Naidu v. Matlapalli Virayya (AIR 1918 Mad 26 (FB)) the Full Bench while dealing with the point observed that the corresponding provision of the earlier Code of Civil Procedure had been applied without question to a case of attachment before judgment which went before the Privy Council in Kissorimohun Roy v. Harsukh Das ((1889) 17 Ind App 17). In Durga Dei v. Sadanand Prusty (AIR 1952 Orissa 182), Ray, C.J. referred to in paragraph 8 of his judgment, several decisions taking the same view. The decisions of Kerala High Court (AIR 1971 Ker 159), Andhra Pradesh Court (AIR 1961 Andh Pra 385), Mysore High Court (AIR 1954 Mys 39), Allahabad High Court (AIR 1953 All 452) and Calcutta High Court (AIR 1945 Cal 449) are also to the same effect. While considering the question as to the period of limitation applicable to such a suit, this High Court in Mt. Babbal Kumari Jayashwalin v. Mulchand Marwari (AIR 1934 Pat 580) held that Rule 63 applied to an investigation under Order 38, Rule 8 of the Code. But since that rule did not lay down the period of limitation, one year period prescribed under Article 11 of the Schedule to the Limitation Act would not apply as the Article referred to suits filed after attachment in execution of a decree. The longer period under Article 120 was held available. However, that point is not relevant in the case before us. What is material is that the provision of a suit under Rule 63 was held to be applicable to the investigation under Order 38, Rule 8. Now after the amendment, there is no reason to hold that the provision regarding appeal which has been introduced in place of the suit under Rule 63 should be restricted in its application. The object of providing for a suit under Rule 63 of the Code, as it stood before the amendment, to be filed within a shorter period of limitation was to have expeditious disposal of questions of title raised by claims against attachment before or after judgment. This object is sought to be achieved in greater degree by the amendment. The language of Order 38, Rule 8 of the Code makes the entire provisions of Order 21, Rule 58 (earlier Rules 58 to 63) applicable and nothing has been suggested by Mr. Mishra, appearing for the petitioner, for giving a narrow and limited application to Order 21, Rule 58 (4) of the Code. The Sub-rule (2) of Rule 58 directs all questions including questions relating to the right, title or interest in the property attached arising between the parties to the proceeding or their representatives and relevant to the adjudication of the claim to be determined under this rule and a separate suit for the purpose has been barred. If the provision of appeal be held to be inapplicable in case of attachment before judgment, the losing party in such cases will be debarred from agitating his claim and challenging the order against him. The claim of title to immovable properties in other cases are subject to scrutiny by more than one Court and it cannot be assumed that the legislature intended to discriminate in cases arising out of attachment before judgment.
7. We, therefore, hold that the petitioner should have filed an appeal before the District Judge and this civil revision application is not maintainable and is dismissed, but without costs.