Amitav Banerji, J. - (1.) THIS revision is directed against an order of the District Judge of Jaunpur dated 9th April, 1977 in Execution Case No 1 of 1975. The learned District Judge dismissed the application 27-G under Order XXI Rule 59 (b) CPC praying for the stay of the confirmation of sale of the house.
(2.) FIRM Ramjas Rolling Mills, Uchehra, district Satna and Dharam Chand, opposite parties 1 and 2, in this revision, obtained a decree for the recovery of Rs. 15,029.32 against opposite parties 3 to 7 and also against the late Sri Ram Kadam, father of opposite parties 6 to 13, from the Court of the district Judge, Satna, on 18-1-1974. The decree was transferred for execution to the court of the District Judge, Jaunpur. One house and an Ahata situate in Tehsil Shahganj were attached by the order of the District Judge, Jaunpur. Smt. Shyama Devi, wife of Ram Kadam and mother of opposite parties 6 to 13 and one Smt. Chandrawati Devi filed an objection under Order XXI Rule 58 Code of Civil Procedure in respect of the properties attached in execution of the aforesaid decree The learned District Judge by his order dated 3-1-1976 allowed the claim of the applicant in part and released the Ahata from the attachment but rejected the objections relating to the disputed house under Or XXI Rule 58 CPC. After the disposal of the aforesaid objection the disputed house was auctioned on 10-1-1977. Thereafter an application 27/C was moved by Smt, Shyama Devi under Order XXI Rule 59 (b) CPC for staying the confirmation of the auction sale of the disputed house on the allegation that she had filed a civil suit no. 1 of 1977 in the Court of Civil Judge, Jaunpur under Order XXI Rule 63 CPC, The application having been dismissed the present revision was filed. Learned counsel for the applicant contended that the court below was in error in not granting the prayer made in the application 27/C. Reliance was placed on the provisions of Order XXI Rule 59(b) CPC which reads as follows :- "Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may- (a) ............ (b) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such term and condition as to security or otherwise the Court thinks fit." It was contended that where the attached property was immovable one, and an objection or a claim was made and it remained pending, the property could not be sold and even if sold its sale could not be confirmed until the disposal of the claim or the objection. In the present case immoveable property had been attached and the claim had not been finally disposed of. Learned counsel for the opposite parties raised a two-fold objection to this argument. Firstly, it was stated that Order XXI rule 59 (b) of the Code was not applicable in the present case and secondly, the reference therein was to an objection or a claim and not to any suit. In other words, it was contended that the provisions of Rule 59 (b) were not at all attracted to the facts of the present case. The provisions of Rule 59 (b) were introduced by the Civil Procedure Code (Amendment) Act, 1976, hereinafter referred to as the Amendment Act. Sec. 97 (q) of the Amendment Act has specifically provided amongst other things that the provisions of Rule 59 of Or. XXI, as amended, or substituted or inserted by Sec. 72 of the Amendment Act shall not apply to or affect (i) any attachment subsisting immediately before the commencement of Section 72 of the Amendment Act, or (ii) any suit instituted before such commencement under Rule 63 of Order XXI to establish a right to attach property or (iii) any proceeding to set aside the sale of immovable property, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force. It is, therefore, clear that the provisions of Rule 59 (b) will not be attracted in the present case where the attachment took place before the date of the commencement of the Amendment Act viz. 1-12-1972. It was a pending proceeding and, therefore, the provisions of unamended Civil Procedure Code would be applicable, in this view of the matter the question of staying of the sale or staying the confirmation of sale under the provisions of Rule 59 (b) does not arise.
(3.) CONSEQUENTLY, it will be unnecessary to consider the scope of Rule 59 visa-vis the claim or the objection. Learned counsel for the applicant then contended that since a suit had been filed under Rule 63 of Order XXI of the Code, the order made under Rule 58 of Order XXI had not become final. That is correct. In the present case the provisions of the unamended Code of Civil Procedure would be applicable so far as Rules 58 and 63 of Order XXI are concerned. It is true that Rule 63 has been deleted by the 1976 Amendment Act, but, for the purposes of the present case Rule 63 would be deemed to be existing and applicable. This is clear from Sec. 97 (q) (ii) of the Amendment Act. Rule 163 reads as follows : "Where a claim or an objection is preferred, the party against whom an 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, the order shall be conclusive." It is dear that any order passed under Rule 58 or Order XXI is not final or conclusive so long as a suit filed under Rule 63 is not finally disposed of. Of course, if no appeal is preferred against the order under Rule 58 within the period of limitation, the order becomes final.;