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Judgment
Heard Sri G.V. Thimmappaiah, learned Counsel for the revisionist-petitioner, and Sri G. Sridhar for Sri G. Kasturi for respondents.
This revision petition u/s 115 of the CPC arises from the judgment and order dated 24-6-1994 passed by the learned Additional Civil Judge, Mysore, whereby the learned Civil Judge has allowed the application moved by the present respondents 1 to 3 under Order 21, Rule 58 of the CPC and has held that the property -- subject-matter of dispute in the proceedings which has been the subject-matter of attachment being the trust property, the said property could not be attached and in ordering the release of that property from being attached. In the course of arguments, a preliminary objection was raised by Sri Sridhar that the revision is not maintainable because in view of Order 21, Rule 58(4), it has been provided that, an order passed under Order 21, Rule 58 shall have same force as that of decree and it shall also be subjected to appeal being maintained against it. Sri Sridhar in this connection invited the attention of this Court in the decision of Sidramappa Rachappa Chiniwar and Others Vs. Shankaralingappa Veerappa Bilagi and Others, .
This preliminary objection has hotly been contested on behalf of the petitioner. Learned Counsel for the petitioner contended that the order is not directly appealable to this Court and. therefore the revision is maintainable even if it is a decree.
I have applied my mind to the contentions raised by the learned Counsel for the parties. It would be appropriate at this juncture to refer to the provisions of Order 21, Rule 58. Order 21, Rule 58 deals with adjudication of claims and objections to attachment of property. It reads as under:
"58. Adjudication of claims to or objections to attachment of property:--(1) 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 herein contained;
Provided that no such claim or objection shall be entertained-
(a) where before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or 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 objections and not by a separate suit.
(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.
(4) 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.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive."
A perusal of clause (4) of Rule 58 clearly reveals that where any claim or objection has been adjudicated upon, the order made thereon shall have the same force and be subject to same conditions as to appeal or otherwise as if it were a decree. It had been contended on behalf of the petitioner that in the definition of decree u/s 2(2) an order passed under Order 21 has not been included while one passed u/s 144 has been included. The definition clause defining the decree u/s 2(2) of the Act is subject to what has been expressed by use of expression "unless there is anything repugnant in the subject or the context". It means if there is anything otherwise provided under any provision of this Code, then that may also be included and then this definition may not be operative as a binding. Further, we find the later portion of Section 2(2) is an inclusive illustration of something and it shall be deemed to include rejection of claim and rejection of plaint u/s 144. It means where there is determination of question involved as to the rights of the parties and adjudication is not an order in the nature from which appeal is permissible under Order 43, that order may also be included in the decree and in every case where the provision itself declares a particular order to amount to be a decree, it will also be included. Order 21, Rule 58(4) very clearly declares as mentioned earlier that where any claim or objection has been adjudicated upon, the order made thereon shall have the same force of the decree and be subject to the condition of the appeal and other conditions. It means this provision i.e., Order 21, Rule 58(4) by itself declares the order made under Order 21, Rule 58 to amount to be a decree and subject to conditions. Similarly is the provision under Rule 103 of Order 21. In that rule also it has been provided that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. This Court had the occasion to consider a case under Rule 103 as well and when I so opined that such an order is appealable and I find support from two earlier decisions of this Court in the case of Sidramappa Rachappa, supra, Hon''ble N. Venkatachala as he then was, has been pleased to hold that,
"Though the Court below while making the order states that it was making summary orders and it was open to the aggrieved parties to file regular suits for establishing their rights, the orders under challenge were to be necessarily considered as decrees appealable as provided for in sub-rule (4) of Rule 58 of Order 21 and revision u/s 115 of the CPC was not maintainable."
Thus considered in my opinion, that the order impugned amounts to a decree and the proper remedy for the applicant is to prefer an appeal u/s 96 as that order under Order 21, Rule 58(4) amounts to a decree and subject to right of appeal. Revision, as such, is not entertainable and revisional jurisdiction is not exercisable in view of Section 115(1) and (2) of the CPC. Revision is hereby dismissed, but making it very clear that the remedy being available, he can approach the Appellate Court with an application for condonation of delay.