1. In this application u/s. 115 of the Code of Civil Procedure (hereinafter referred to as the Code) a question arises as to whether a person whose claim is negatived by the Court under Or. 38, R. 8 of the Code can maintain a revision application before this Court or his remedy lies by way of appeal.

2. The opposite party No. 1 filed a suit praying for a money decree against the opposite party No. 2 and got attachment of certain immovable properties before judgment. The petitioner, not a party to the suit, preferred a claim under Or. 38, R. 8 of the Code. The parties led evidence. The court below rejected the petitioners claim by an order impugned before us.

3. If sub-rule (4) of Or. 21, R. 58 of the Code be held to apply to the case, the petitioner should have filed an appeal before the District Judge; and this revision application must be dismissed as being not maintainable.

4. Before the amendment of the Code of Civil Procedure in 1976, Rules 58 to 63 of Or. 21 dealt with the investigation of claims and objection in execution. The R. 8 of Or. 38 of the Code provided that where any claim was preferred to property attached before judgment, the same should be investigated in the manner hereinbefore provided for investigation of claims to property attached in execution of a decree for the payment of money. The reference was to the Rules 58 to 63 of Or. 21. By the 1976 amendment, the examination and decision of the claims both in Or. 21 and Or. 38 have been described by the expression adjudication in place of investigation; but we do not think that this amendment has in any way affected the nature of the proceeding. Order 38, R. 8 of the Code, even after amendment, refers, for adjudication of the claims, to the manner provided for, in Or. 21. The Amendment has, however, introduced some material modification in the relevant provisions of Or. 21. Rules 59 to 63 have been repealed and all the provisions relating to the adjudication of the claim have been incorporated in R. 58 itself. Omitting the difference in the two sets of procedure, that is, before and after the amendment, which is not material for the present case, it will be observed that R. 63 required the party against whom an order in the investigation was made to institute a suit to establish his claim. Now the remedy has been provided by way of an appeal under sub-rule (4) of R. 58 treating the order complained of as a decree.

5. The petitioner has filed the present application before the High Court on the ground that the impugned order is not appealable under Or. 43, R. 1 of the Code. It is true that the order has not been made appealable under this provision but that does not solve the problem. The question is as to whether Or. 21 , R. 58 sub-rule (4) applies.

6. The controversy whether R. 63 of Or. 21 applied to the investigation under Or. 38, R. 8 had engaged the attention of the Courts for sometime but later it was resolved by answering the question in the affirmative. In Mallikharjuna Prasada Naidu V/s. Matlapalli Virayya (AIR 1918 Mad 26 (FB)) the Full Bench while dealing with the point observed that the corresponding provision of the earlier Code of Civil Procedure had been applied without question to a case of attachment before judgment which went before the Privy Council in Kissorimohun Roy V/s. Harsukh Das ((1889) 17 Ind App 17). In Durga Dei V/s. Sadanand Prusty (AIR 1952 Orissa 182), Ray, C. J. referred to in paragraph 8 of his judgment, several decisions taking the same view. The decisions of Kerala High Court (AIR 1971 Ker 159), Andhra Pradesh Court (AIR 1961 Andh Pra 385), Mysore High Court (AIR 1954 Mys 39), Allahabad High Court (AIR 1953 All 452) and Calcutta High Court (AIR 1945 Cal 449) are also to the same effect. While considering the question as to the period of limitation applicable to such a suit, this High Court in Mt. Babbal Kumari Jayashwalin V/s. Mulchand Marwari (AIR 1934 Pat 580) held that R. 63 applied to an investigation under O.3