The decree holder has preferred this second appeal questioning the Judgment and Decree passed in R.A.8/2004 dated 15.01.2010 by the Presiding Officer, Fast Track Court-I, Bidar, whereunder order dated 23.02.2004 passed by the Civil Judge (Sr.Dn), Basavakalyan in E.P.127/1995 allowing the execution petition by holding decree holder -bank is entitled to obtain fixed deposit amount for realisation of the decreetal amount came to be reversed and application filed under Order XXI Rule 58 by the appellant came to be allowed.

2. Heard Sri.Manvendra Reddy, learned counsel appearing for appellant and Sri.Ashok

S. Kinagi, learned counsel appearing for third respondent-decree holder. Notice to respondent Nos.1 and 2 has been dispensed with by order dated 31.01.2011. Though matter is listed for admission by consent of learned advocates same is taken up for final hearing. It is also agreed by the learned advocates appearing for the parties that following substantial questions of law would arise for consideration:

(i) Whether claim can be preferred or objection raised to attachment of property after the sale of attached property if it has been conclusively sold?

OR

Whether under clause (a) of proviso to sub-rule (1) of Rule 58 of Order XXI would be a bar to prefer claim or raise objection to the attachment of the property attached in execution of a decree on the ground that sale has already concluded?

(ii) Whether the appeal filed by the third respondent in R.A.8/2004 was not maintainable in view of the bar under sub-rule (5) of Rule 58 of Order XXI C.P.C?

(iii) Whether the first appellate court was justified in allowing the application filed by third respondent under Order XXI Rule 58 of C.P.C in the facts and circumstances of the case?

3. Facts in brief leading to filing of this appeal are as under:

The appellant State Bank of India, Humnabad (hereinafter referred to as `bank' for brevity) filed a suit for recovery of money against respondent Nos.1 and 2 and obtained a decree. To realise the decreetal amount execution petition was filed and in the said execution petition third respondent herein namely Karnataka State Financial Corporation, Bidar Branch, (hereinafter referred to as `KSFC' for brevity) filed an application for raising the attachment and sought for rejection of the execution petition on the ground that KSFC has sanctioned loan amount to the respondent Nos.1 and 2 herein ((hereinafter referred to as `JDR's' for brevity) and there was first charge over the properties sold in auction and the bank was not entitled to the amount realised by it by way of sale. The executing court did not accept the claim of the KSFC and allowed the execution petition by order dated 23.02.2004.

4. Aggrieved by this order KSFC preferred an appeal in R.A.8/2004 by reiterating its contentions raised in the application filed under Order XXI Rule 58. After considering the arguments of the respective learned advocates the lower appellate court formulated the following points for its determination:

(i) Whether the order of the trial court on the application under Order XXI Rule 58 of C.P.C filed by the appellant is incorrect and liable to be set aside?

(ii) Whether the appellant has made out sufficient grounds for interference of this court into the said order of the lower court?

(iii) What order?

5. Points 1 and 2 came to be answered in the affirmative by judgment dated 15.01.2010 by allowing the appeal.

6. It is the contention of Sri.Manvendra Reddy the judgment and decree passed by lower Appellate Court is illegal and the only recourse left open to the aggrieved party was to file a suit as contemplated under sub-rule (5) of Rule 58 of Order XXI and as such appeal could not have been filed by third respondent before lower appellate court; he would also contend that the order of the trial court is conclusive and binding on the parties and aggrieved party had to file a separate suit as per sub-rule (5) of Rule 58 of Order XXI. He woul