Jagat Narayan, J.—The sole question which arises in this revision application is whether the executing court has jurisdiction to entertain a claim purporting to be under O.21, R.58(1) CPC after the execution sale has taken place, but before it is confirmed. On this question there is a conflict of judicial opinion. The High Courts of Bombay, Calcutta, Lahore, Madhya Bharat, Patna and Rangoon have taken the view that the court has no such jurisdiction. The reasons for this view are contained in the followibng decisions:—

(1) Gopal Chandra Mukerji Vs. Notobar Kundu (15 I.C. 53), (2) Maung Po Pe Vs. Maung Kwa (AIR 1928 Rangoon 80), (3) Sasthi Charan Vs. Gopal Chandra (AIR 1937 Calcutta 390).

A contrary view was taken in the following decisions :—

(1) Jagannadham Vs. Pydayya (AIR 1931 Madras 782), (2) Mukhi Vs. Allahbux (AIR 1933 Sind 198), (3) Ram Chandra Vs. Kayam Hussain (AIR 1938 Nagpur 475), (4) Ramiah Vs. Cowdiah (AIR 1958 Mysore 140). Having fully considered the above decisions and the arguments advanced by the learned counsel for the parties I am of the opinion that the latter view is preferable.

2. Clause (1) of O. 21, R. 58 makes it incumbent upon the court to proceed to investigate a claim or objection which is preferred to the attachment of the property which is attached in execution of a decree on the ground that such property is not liable to such attachment except where the court considers that the claim or objection was designedly or unnecessarily delayed in which case again the proviso contained in that clause makes it equally incumbent upon the court to decline to investigate the same. Clause (2) gives power to the court to postpone the sale pending investigation of a claim or objection. One reason given in favour of the first view is that the inference to be drawn from clause (2) is that once a sale has taken place there can be no investigation of the claim or objection. This is not tenable. The expression used in clause (2) is "may" as opposed to the expression "shall" appearing in clause (1). Prima facie therefore clause (2) is no absolute bar to the court proceeding with the sale of the attached property notwithstanding the pendency of an application for raising attachment.

3. Another reason advanced in favour of the first view is that R. 60, which follows R. 58, says that attachment will be raised in case the claim or objection prevails and it does not provide for the setting aside of the sale. Further that where sale has actually been held it cannot be set aside without giving notice to the auction purchaser who is affected thereby and who becomes entitled to repayment of his purchase money. This in my opinion does not present an insurmountable difficulty. Under sec. 65 C.P.C. the property vests in the auction purchaser from the date of the sale after the confirmation has taken place. It follows from it that before the sale is confirmed the property does not vest in the auction purchaser. If the property is released from attachment under R. 60 the unconfirmed sale will automatically lapse and the court can pass an order for the refund of the purchase money to the auction purchaser. Further the auction purchaser can be impleaded as a party to the proceedings under O.21, R.58 whenever a claim or objection is filed after the sale has taken place so that he may adequately safeguard his inchoate interest in the property.

4. The main ground on which the first view is based is the assumption that attachment ceases when sale takes place. There seems to be no warrant for this assumption. Express provision is made in RR. 55 and 57 of O. 21 for the removal and determination of an attachment. There is no provision providing that mere sale of an attached property itself removes or determines the attachment. An execution sale is liable to reversal in certain circumstances provided for in RR. 72(3), 89 and 90 of O. 21. The Code of Civil Procedure does not provide for a fresh attachment to be made in the event of the sale being s

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