The defendant in S. C. S. 997/57 on the file of the Munsiff of Kozhikode is the revision petitioner. The decree obtained against him was put in execution and the schedule items 2 acres and 94 cents of garden land with building and 1 acre and 14 cents of paddy land were sold to the 3rd respondent for Rs. 26/- on 3-7-67. The defendant is the assignee from the debtor and the assignment was taken at a time when the E. P. was pending. Proceedings in execution, thereafter were not known to the petitioner and he came to know of the same only on 5-7-63 when the Amin went over to the property for effecting delivery. He accordingly filed a petition under O. 21. R. 90 C. P. C. for setting aside the sale. Along with that petition a claim petition under O.21, R.58 was also filed : but that was not pressed and it was accordingly dismissed.

2. The learned Munsiff took the view that the petition for setting aside the sale is not maintainable and the proper course open to the petitioner was to file a claim petition under O.21, R.58. The Court further held that it was unwise on the part of the petitioner to have not pressed the petition under O. 21, R. 58. To quote the learned Munsiff :

"The p