BIRENDRA PRASAD SINHA, J.

1. This appeal by Smt Jyotsna Mehta, wife of the judgment-debtor has been filed under O.22 R.58(4) of the Civil P.C. (in short the "Code") against an order dated 23rd June 1979 passed in Miscellaneous Case No. 87 of 1965/44 of 1976 by the Subordinate Judge 2nd Court, Muzaffarpur.

2. The short facts leading to this appeal are these:-

The respondent No. 1 M/s. Ram Bahadur Thakur and Company obtained a decree against the respondent No. 2 Pashupati Nath Mehta and some others on 29-6-1963. On 3-10-1963 the decree-holder filed execution case No. 84 of 1963 and put certain properties belonging to the judgment-debtor under execution. Sometime in the year 1964 the properties were attached. Thereafter, it appears, some applications were filed under O.21 R.58 of the Code by the judgment-debtor and some others which were dismissed. The present appellant Smt Jyotsna Mehta filed an application under O.21 R.58 of the Code on 16-9-1965 which was registered as Miscellaneous case No. 87 of 1965. She claimed that in a partition suit she was allotted 1/3rd share in some properties by a compromise and she was in possession thereof. As she was not a party to the decree under execution the decree could not be executed against her or her properties. The plea was negatived and the Miscellaneous case filed by her was dismissed by the learned Subordinate Judge by the impugned order.

3 Mr. Shree Nath Singh learned counsel appearing on behalf of the respondents-decree-holder, at the very out-set, submitted that the appeal filed by the appellant in this Court under O.21 R.58(4) of the Code as amended in 1976 is not maintainable. He further submitted that the remedy of the appellant, if any, was to file a suit under O.21 R.63 of the old Code.

4. The question for consideration, therefore, is whether the appeal as filed under the provisions of O.21 R.58(4) of the Code as amended is maintainable.

5. Some provisions of the Civil P C, 1908 were amended by the Code of Civil Procedure (Amendment) Act 1976, (No. 104 of 1976). The relevant provisions came into force on 1st Feb., 1977. The provisions contained in O.21 R.58 of the Code before the amendment provided for investigation of claims and objections. According to it where any claim was preferred to or any objection was made to the attachment of any property attached in execution of a decree on the ground that such property was not liable to such attachment the Court was required to proceed to investigate the claim or objection with a like power as regards the examination of claimant or objector and in all other respects as if he was a party to the suit. O.21 R.63 of the Code prior to amendment provided that where a claim or an objection was preferred, the party against whom an order was made could institute a suit to establish the right which he claimed to the property in dispute, but subject to the result of such suit, if any, the order was conclusive. Such orders were not appealable under the provisions of S.104 of the Code.

6. The provisions contained in O.21 R.58 (old) had a limited scope. After the adjudication of claims and objections in the execution proceeding the matter could be further agitated in a regular suit. This unnecessarily led to protracted litigation. It was thought desirable to have all questions including the question of title settled finally in the execution proceeding itself. Rules 58 to 63 were, therefore, substituted by the amending Act which now provides for an appeal from an order determining the claim or objection under O.21 R.58 of the Code. O.21 R.58, as amended, reads as under : -

"58(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained : Provided that no such claim or objection shall be e