A third party cannot maintain an application under Order XXI, Rule 58 of the Code of Civil Procedure to stay the execution of a decree passed in a suit to which the third party was not a party, where there is no order of attachment passed in the execution proceedings.

( 1 ) OPPOSITE party No. 8 Smt. Alimun Nisha had filed a suit being Original Suit No. 1208 of 1991 in the court of Munslf. Gorakhpur, against one Smt. Soghra Begum. The said suit was decreed on 19th April, 1992. Against that, an appeal was preferred by Smt. Soghra Begum, which was dismissed on 28th September. 1993. The Second Appeal there out was dismissed on 9th January. 1997. The decree passed in Original Suit No. 1208 of 1991 was put into execution in Execution case No. 2 of 1998. The petitioner, who was not a party to the Original Suit No. 1208 of 1991. had filed an application in the said execution proceeding praying for stay of execution as against her. The petitioner is defendant No. 1 in Original Suit No. 1777 of 1990 filed by one Gulam jeelanl in the court of Munsif Sahar, Gorakhpur. The opposite party No. 8 Smt. Alimun Nisha is not a party to the said suit. The application filed by the petitioner, as contended by Mr. Rafiuddin ansari, Advocate, was purported to have been made under Order XXI, Rule 58 of the Code ol civil Procedure. Mr. Ansari contended that the petitioner was not a party to the Original Suit No. 1208 of 1991. Therefore, the decree passed thereon does not bind her and she cannot be evicted in execution of the decree through execution proceedings in Execution Case No. 2 of 1998. Therefore, the execution of the said decree should be stayed. According to him the learned Civil Judge (Junior Division) IIIrd Court in Execution Case No. 2 of 1998 passed an order on 9th March. 1999 rejecting the said application. The petitioner had preferred a Revision No. 120 of 1999. By an order dated 6th July. 1999 passed by the learned district Judge. Gorakhpur. the same was dismissed. It is these two orders which have been challenged in this writ petition.

( 2 ) MR. N. A. Khan, learned counsel for Opposite Party No. 8 who had lodged a caveat contends that there was no order of attachment passed in the Execution Case No. 2 of 1998. Therefore, the order XXI, Rule 58 of the C. P. C. cannot be resorted to by the petitioner.

( 3 ) HE contends further that the petitioner is. admittedly, not a party to Original Suit No. 1208 of 1991. Therefore, she cannot oppose the execution either under Section 47 of the C. P. C. or in any other manner. Her application, therefore, could neither be treated as one under Order XXI, Rule 58 nor under Section 47 of the C. P. C. Therefore, the application was rightly rejected by the learned trial court and the order of the learned trial court was rightly affirmed by the learned revisional court. The application should, therefore, be dismissed.

( 4 ) I have heard both the learned counsel at length.

( 5 ) ADMITTEDLY, the petitioner was not a party to the Original Suit No. 1208 of 1991. Whether she is bound by the decree is a question to be gone into in the execution itself, which question cannot be dealt now. But, admittedly, she is not named as Judgment-debtor in the execution proceedings. At the same time, Opposite party No. 8 Smt. Alimun Nisha is not a party to the original Suit No. 1777 of 1990 and any order passed therein cannot bind Smt. Alimun Nisha, the decree-holder. Even if assuming, but not admitting, that the contention of Mr. Ansari is correct that the suit property is the same, still then the execution in Execution Case No. 2 of 98 cannot be affected by reason of the pendency of the said suit. The execution could be opposed by the judgment-debtor under Section 47 of the Code. The judgment-debtor has not come to oppose the same so far as this petition is concerned.

( 6 ) IN the absence of any order of attachment. Order XXI, Rule 58 of the Code has no manner of application. Rule 58, Order XXI provides for objection to the order of attachment made In pursuance of an execution only. If there is an attachment then only Rule 58 comes into play. Every right opposing such attachment can be adjudicated under sub-rule (2) of Rule 58 provided there is an order of attachment.

( 7 ) I