A second appeal lies to the High Court against the appellate order passed on an application under O.21, R.58 C.P.C.

KODANDARAMAYYA, J.:- This Civil Revision petition is referred for decision of a Division Bench by our learned brother Rama Rao, J. The question referred is whether a Second Appeal lies to this Court against the appellate order passed on an application under O.21, R.58 C.P.C.

2. The petitioner herein filed an application under O.21, R.58 C.P.C. before the Subordinate Judge, Narasaraopet, to raise the attachment in respect of petition schedule properties challenging the attachment effected at the instance of the 1st respondent-decree-holder who had obtained a decree against the 2nd respondent-judgment-debtor. The contention of the petitioner is that the execution proceedings in respect of the petition schedule properties are illegal as the property belongs to him and not to the judgment-debtor. At present we are not concerned with the merits of the case and is enough if we notice that the object of the petitioner was overruled by the executing Court. A Civil Miscellaneous Appeal was filed against the said order of the executing court dated 18th July, 1979 on the file of the I Additional Judge, Guntur and the Appellate Court in its judgment dated 6-12-1979 confirmed the order of the executing court. Against the said judgment, the petitioner herein filed the present Civil Revision Petition and the respondent took a preliminary objection stating that under O.21, R.58 (4) C.P.C. as amended by Act 104 of 1976 no civil revision Petition lies but an appeal lies to this Court.

3. It may be stated at the outset that the learned counsel for the revision-petitioner has filed in the first instance a second appeal but when the office took an objection he converted the same into a civil revision petition. At the time of the final hearing as the matter relates to procedure of general importance, the learned Judge referred the matter to a Division Bench. That is how it has come before us.

4. The learned counsel for the petitioner himself has now realised the legal position and submitted that a second appeal lies to this Court, but not the Civil revision petition. As this case was referred to a Division Bench for the determination of this question, we have examined the legal position and delivering the judgment without resting our conclusion on any concession made by the counsel.

5. The question whether a second appeal lies or a civil revision petition lies depends upon the construction of the amended provision of O.21, R.58, C.P.C. The Amending Act 1976 substituted new Rr.58 and 59 and omitted Rr.60 to 63 to O.21 of C.P.C. Under the amended provision of R.58, in order to prevent the protraction of litigation, it has been provided that all questions including questions of title shall be finally determined in execution proceedings and this provision is in keeping with the tenor of S.47 of the Code. The remedy of the suit is preserved if the executing court refuses to entertain the claim but if an adjudication is made, sub-rule (4) declares that such an order passed on such adjudication shall have the same force and subject to the same conditions as to appeal or otherwise as if it were a decree. The crucial words in the rule with which we are concerned in this case may be extracted :

O.21, R.58 (4), C.P.C. reads as follows :-

"Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and subject to the same conditions as to appeal or otherwise as if it were a decree".

The question that falls for determination is though under the said provision, appeal lies to the appellate court under the Code, whether a second appeal also lies which is not expressly conferred under said provision. The answer to this question can be arrived at according to us mainly on the construction of the provision and on gathering the intention of the Amending Act also by examining the precedents to touching the question.

6. First of all the provision occurs in the Civil Procedure Code and it refers to the proce