LAXMIDEVI Vs. PRAKASH AND CO

JUDGEMENT

(1.) In a suit of respondent-1 here, a partnership firm, instituted in the Court of Civil Judge at Bellary (for short 'the Court') against respondent-2 here, for recovery of certain money, an attachment before judgment of certain immovable property had been made on 6-6-1974. That suit having been decreed subsequently, the immovable property, which had been attached therein, was ordered to be sold on 21-1-1980 by the Court, in executing that decree. Thereafter, petitioners here preferred a claim in the Court respecting the said immovable property That claim was upheld by the Court's order dated 19-4-1983. That order having gone against respondent-1, another suit, O.S. No. 127 of 1983, was instituted by it in the Court purporting to be under Rule 63 of Order 21 of the Code of Civil Procedure, 1908 (for short 'the Code'), as that rule stood before its repeal by the Code of Civil Procedure (Amendment) Act, 1976 (for short 'the Amendment Act'). A preliminary issue raised in the latter suit respecting its maintainability was considered by the Court at the instance of the petitioners, but was held against them by its order dated 12-9-1984. The validity of that order is questioned" by the petitioners (defendants in the suit) in this revision petition.

(2.) Shri V. S. Gunjal, learned Counsel for the petitioners, contended that the Court was in error in holding that Rule 58 of Order 21 of the Code, as it stood before its substitution by Section 72 of the Amendment Act, is the provision under which the petitioners' claim had been adjudicated upon and it is this error which had made the Court conclude that the order by which the petitioners' claim was adjudicated upon, was not an appealable decree. It was his contention that the Court should have regarded the order adjudicating the petitioners' claim as one made under Rule 58 of Order 21 of the Code as it stood substituted by the Amendment Act and, hence, as an appealable decree. It was his further contention that failure of the Court to regard the order by which the petitioners' claim was adjudicated upon in that manner, had led it to hold the issue relating to maintainability of the suit against the petitioners.

(3.) Petitioners' claim adjudicated upon and the suit instituted by respondent-1 in the Court pursuant to such adjudication, concerns an immovable property which was admittedly attached under Rule 54 of Order 21 of the Code on 6-6-1974. And that attachment subsisted immediately before Section 72 of the Amendment Act came into force on 1-2-1977 substituting new Rule 58 in the place of old Rule 58 of Order 21 of the Code. If new Rule 58 was applicable to adjudication of the petitioners' claim relating to attached immovable property, undoubtedly, the contentions of Shri Gunjal directed against the order under revision would have merited acceptance. But, sub-section (2) (q) of Section 97 of the Amendment Act, comes in the way and leads to a different result.