L. NARASIMHA REDDY, J.

( 1 ) A short but interesting question, namely, whether an application under Rule 58 of order xxi c. p. c. , can be entertained, even before the actual attachment is effected, falls for consideration in this appeal.

( 2 ) THE facts in brief that lead to filing of this appeal, are as under: the appellant filed o. s. No. 191 of 1996, against the second respondent, in the court of senior civil judge, madanapalle, for recovery of certain amount. The suit was decreed for a sum of rs. 1,03,000/-, on 30. 12. 1999, and the decree became final. The appellant filed e. p. 72 of 2000. He sought for attachment of certain movables, said to be owned, by the second respondent, in premises bearing door number 13/293-2 in Sri lodge building at bangalore bus stand of madanapalle town. Through order, dated 11. 12. 2000, the trial court directed attachment of the movables. The amin of the court proceeded to the said premises twice, but could not effect attachment, on account of the fact that, the premises was locked, and resistance was offered by the first respondent.

( 3 ) SUBSEQUENTLY, the first respondent filed an application under Rule 58 of order xxi c. p. c. , to raise the attachment. She pleaded that the shop as well as the various articles therein, exclusively belongs to her, and the second respondent, her husband, has nothing to do with the same. The appellant resisted the application on various grounds, through the order under appeal, the e. a. was allowed.

( 4 ) SRI S. V. Bhatt, learned counsel for the appellant submits that the attachment of movable property is complete, only when it is effected in accordance with the procedure prescribed under Rule 43 of order xxi c. p. c. , and in the present case, the record clearly discloses that the attachment was not effected, as required under the said provision. He submits that an application under Rule 58 of order xxi c. p. c. , is exclusively for the purpose of raising attachment, and unless an attachment was actually effected, the question of raising it does not arise. Placing reliance on certain decided cases, learned counsel submits that the application was premature, and not maintainable. He made an attempt to convince this court on the merits of the matter, and pleaded that the second respondent is the actual owner of the property, sought to be attached.

( 5 ) SRI n. Promod, learned counsel for the first respondent, at the outset, submits that the objection as to the maintainability, was not raised before the executing court, and that it cannot be permitted to be raised at this stage. He further contends that once an order of attachment was passed by the executing court, the affected party, does not have to wait till he actually parts with the property, and an application for raising such an attachment can certainly be maintained. He contends that the second respondent, the judgment-debtor, has absolutely no right or interest over the properties in question, and the e. p was filed only with a view to exert pressure on the parties. He too has placed reliance upon certain precedents.

( 6 ) THE suit filed by the appellant, against the second respondent, for recovery of certain amount was decreed. He filed e. p. 72 of 2000, with a prayer to attach as many as 12 items of movable properties, under Rule 43 of order xxi c. p. c. the items proposed to be attached, are mostly furniture and goods in trade. The executing court passed an order on 26. 10. 2000, directing attachment of the immovable properties mentioned in the e. p. when the court amin went to the site, for effecting attachment, there was resistance on the part of the first respondent, on the ground that the items of movable property belong to her. The amin reported the same to the court. The fact that the room was locked and attachment could not be made was recorded by the trial court on 11. 12. 2000. On 13. 12. 2000, the first respondent filed e. a. No. 444 of 2000, under Rule 58 of order xxi c. p. c. , to raise

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