Ramendra Mohan Datta, J. - (1.) This appeal arises from the order dated Aug, 26, 1980, passed by Mrs. Khastagir, J. in an application for an order for vacating or modifying or varying the order of attachment dated Jan. 22, 1975. The application was apparently made under the provisions of Order 21. Rule 58 of the Civil P. C, as amended in 1976 but in the cause title it has been described as an application pro interesse suo or in the nature thereof.
(2.) There is no judgment in the matter but the learned Judge ordered as follows: "Upon reading an application of Commissioner of payments (Coking Coal) (hereinafter referred to as the said applicant) pursuant to a notice of motion dated the first day of July last and upon hearing the Advocates for the parties appearing herein. It is ordered that the application made in this suit be and the same is hereby dismissed. And it is further ordered that the said applicant do pay to the plaintiff/respondents their costs of and incidental to this application to be taxed by the Taxing Officer of this court, And it is further ordered that the parties appearing in this suit be at liberty to apply on proper materials".
(3.) The provisions of Order 21, Rule 58 relate to the adjudication of claim when an attachment has been levied on the property of the person concerned in an application in execution of the decree, The amendment of the Code has provided that such adjudication would be made in the application itself and the matter would be finally disposed of by making orders as provided thereunder and such orders so passed would have the character as if it were a decree. It is only when the matter is disposed of under the proviso to Sub-rule (1) thereof, the provisions of Sub-rule (5) would be attracted and under such provision, the party concerned against whom such order, refusing to entertain his application would be passed, would be at liberty to file a suit and subject to the result of such suit, the order refusing to entertain such application, would be conclusive. In the present case there is no indication from the order itself that the learned Judge has refused to entertain the application on the ground as mentioned in proviso (b) to Sub-rule (i) of Rule 58. Proviso (b) also requires some determination inasmuch as the court has to consider therein that the claim or objection was either designedly or unnecessarily delayed and on that basis the court would make an order refusing to entertain the application. That is not the case here as would appear from the last sentence of the order where it has been provided that the parties appearing in the said suit be at liberty to apply on proper materials. If the court had been satisfied that it was a case of delay which was caused designedly or unnecessarily, then the court would not have given them an opportunity to make further application on proper materials. The court under such circumstances should have indicated its mind that on the basis of the proviso the objection was refused to be entertained and as such the same was dismissed. That, not having been made, in our opinion, Order 21, Rule 58, Sub-rule (5) could have no application and, accordingly, the order passed herein must have been so passed under Order 21, Rule 58, Sub-rule (3) (d). The position, therefore, is that the order so passed under Sub-rule (3) (d) would have the effect as if it were a decree under Sub-rule (4) and the appeal would He from such order of dismissal as a matter of course.;