BHANWARLAL JAIN Vs. BHERULAL

JUDGEMENT

(1.) THIS is a revision by the defendant against the order dated 4-9-1979, whereby the learned trial Judge has rejected his application for dismissing the suit brought by the non-applicant No. 1-Bherulal, under order 21, Rule 63, Civil Procedure Code.

(2.) FACTS material for decision of this revision are as under: Plaintiff-non-applicant No. 1 is owner of the suit house, which was attached on 10-8-1971, in execution of a decree obtained by the defendants against one hari Durga, the number of the execution proceeding being 255/70 X 71. The plaintiff submitted objection under Order 21, Rule 58, Civil Procedure Code, which was dismissed on 23-11-1977. Thereafter the plaintiff brought the suit giving rise to this revision under Order 21, Rule 63, Civil Procedure Code on 23-11-1978, for declaration to the effect that since the house in question belongs to the plaintiff, it is neither attachable nor saleable in execution of the aforesaid decree.

(3.) IN answer to the suit the defendant-applicant inter alia raised a contention to the effect that in view of the provisions of Order 21, rule 58 (4), as amended by the Code of Civil Procedure Amendment Act no. 104 of 1976, the suit is not maintainable. The defendant-applicant-submitted an application for dismissal of the suit on the ground that in view of the provisions placed in sub-rule (4) of Rule 58 of Order 21, Civil Procedure code, the plaintiff ought to have preferred an appeal against the aforesaid order rejecting his objection and cannot maintain the suit. This application was opposed by the plaintiff and has been rejected by the learned trial Judge by the impugned order. Hence this revision.