( 1 ) THE first respondent laid the suit in OS. No. 312 of 1980 under Order 34, Rule 1 C. P. C. against the second respondent. K. Ramayogi to recover the suit amount, seeking preliminary and a final decree against the hypotheca mentioned in B Schedule property and also a personal decree for the residue. Pending the suit, he got attached under Order 38 Rule 5, the lorry bearing aag 5666. The appellant third party filed I. A. 3083/81 under Order 3 8 rule 8 C. P. C. to raise the attachment, but was unsuccessful as against which this appeal has been filed.

( 2 ) THE appellant claimed that it is the owner of the said lorry and the second respondent is the purchaser under the hire purchase contract dated july 31, 1979. The title in the lorry, in terms thereof, vests in the appellant. It continues to be its owner till all the instalments due thereunder are paid over. Under the contract, Mr. Ramayogi has no right to assign, sell, pledge, charge, under-let or otherwise part with posession, custody or beneficial interest in the said vehicle, without any written consent of the appellant. The appellant as owner, has the right to "determine at any time the agreement by delivering up the said vehicle at the cost of the second respondent. It also reserved its right to seize, etc. of the said vehicle. The second respondent is only a purchaser without any ownership rights and the lorry thereby is not liable to attachment. It was resisted by the first respondent contending that the second respondent purchased the tourist bus under a hire purchase agreement with the Ramachandra Finance Corporation, Ponnur and borrowed the suit amount to effect repairs to the bus as well as to discharge the debt under the contract and has executed a promissory note. He also hypothecated the plaint b schedule property which is not sufficient to meet the debt. Subsequently the second respondent converted the bus into a lorry. The contract with the appellant is only a fraudulent action to deprive his legitimate claims. The second respondent intended to keep the lorry out of his reach and beyond the jurisdiction of the Court and with great difficulty, after chase, the lorry could be caught and brought before the Court.

( 3 ) THE Court below relying upon Section 2 (c) of the Hire purchase act, 1972, held that the contract with the appellant is in violation thereof and that the second respondent continued to be the owner. Therefore, the application was dismissed.

( 4 ) THE office numbered the appeal subject to maintainability and when it came up for hearing, arguments were addressed on either side in this regard. It may be made clear that the Court below dissmissed the application on merits without conducting any enquiry.

( 5 ) MR. Hanumantha Rao, learned counsel for the respondent contended that the suit being one under Order 34 Rule 1, Order 38 Rule 8 has no application since it is not a money suit. Therefore the claim of the appellant for adjudication under Order 38 has no legal base. He further contends that even otherwise, right of appeal is a substantive right and not a part of the procedure and has not been expressly provided under Order 38 Rule 8 or order 43 Rule l (q) which provides only right of appeal against orders under rules 2, 3 and 6 of Order 38. The procedure contemplated under Order 38 rule 8 is only the adjudicatory right against claims and objections made in order 21 Rule 58 but right of appeal under order 21 Rule 58 (4) is not applicable to the attachment before judgment. It is further contended that attachment before judgment is not in execution ; the appellant is not a party to the suit and Order 21 Rule 58 (4) is available to a defendant in execution. The only remedy is to lay a suit. So the appeal is not maintainable. These contentions have been refuted by the learned counsel for the appellant.

( 6 ) THE first question is, whether order 38 rule 5 would apply to the suits filed under Order 34 Rule 1. Rule 5 of Order 38 empower