K.B.N Singh, C.J:— This Civil Revision application is directed against an order dated the 10th April, 1976 of the Additional Subordinate Judge of Dhanbad, summarily dismissing the application of the petitioner under Order XXI Rule 58 of the Code of Civil Procedure (hereinafter referred to as the Code), without any investigation, on the ground that the objection was at the instance of the son of the judgment debtor, and designedly filed to delay the delivery of possession and was a belated one.

2. Necessary facts for the disposal of this application may shortly be stated. The Opposite Party brought a suit, (Title Suit No. 505 of 1962) for eviction of the defendants, who were (i) Bhagwati Prasad Sharma, (ii) Lajpat Rai Seth, and (iii) Jawahar Lal Seth, from a house in the Town of Jharia, under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1948, on the ground of personal necessity, as well as breach of the terms of the tenancy and arrears of rent. The allegation was that Lajpat Rai Seth was the tenant of the house in question and the other two defendants were sub-lessees of Lajpat Rai Seth (Defendant No. 2). These three defendants were impleaded as Opp. party in this Civil revision application, but their names were subsequently penned through. It may be mentioned that the petitioner in this civil revision application is the son of Lajpat Rai Seth.

3. The suit was decreed by the trial court, but that decree was reversed in appeal by the lower appellate court. Against that decision, Second Appeal no. 813 of 1966 was filed in this Court and the judgment and decree of the lower appellate court were set aside and those of the trial court restored on the 26th November, 1968. Against the decision of the High Court, an application for Special Leave to appeal was rejected by the Supreme Court of India on the 21st August, 1969. In the meantime, on the 20th December, 1968, the plaintiff-decree-holder levied execution of the decree in Execution Case No. 153 of 1968, for delivery of possession of the premises in question. The judgment-debtors filed a number of miscellaneous judicial cases, some of them being Miscellaneous Judicial Case no. 43 of 1969, and Miscellaneous Judicial Case No. 89 of 1969. Thereafter, an application was also filed by judgment-debtor Jawahar Lal Seth, full brother of Lajpat Rai Seth, under Order IX, Rule 13, of the Code, for setting aside the exparte decree passed against him in Title Suit No. 505 of 1962, which was allowed on the 16th February, 1973. This order of the court below was subsequently set aside by this Court in Civil Revision no. 247 of 1973, by an order dated the 21st April, 1975. Thereafter, on the 25th November, 1975, a writ of delivery of possession was issued. Against that order an appeal was taken to the District Judge and as order for stay of the delivery of possession was obtained on the 27th, November, 1975, which, however, was vacated on the 12th March, 1976. It was on this date that the present application under Order XXI, Rule 58, read with section 151, of the Code was filed by the present petitioner, the son of the judgment-debtor, Lajpat Rai Seth.

4. The case of the present petitioner in this objection petition under Order XXI, Rule 58, of the Code was that the house in question was purchased by one Gaya Prasad Singh, father of the decree holder on behalf of his joint family, consisting of himself and his brother, Mahabir Prasad Singh, by a registered deed of sale dated the 9th December, 1948. Thereafter, Gaya Pd. Singh and Mahabir Prasad Singh died, leaving behind their sons in the state of jointness. The petitioner's case is that by mutual and amicable settlement the eastern portion, which consists the suit premises, fell to the share of the son of the said Mahabir Prasad Singh and that the western portion fell to the share of the decree holder, son of the said Gaya Prasad Singh. The petitioner's case further is that he was inducted as a tenant on a monthly rental of Rs. 110/- by Ambika Pd. Singh, son of Mahabir Prasad Singh, on the suit premises, wherein he is carrying on a cloth business in the name and style of Seth Brothers. The petitioner was not a party to Title Suit No. 505 of 1962, and so the decree, if any, passed in the same could not be executed against him. In this application thus, he has claimed an independant interest in the suit premises and has alleged that the decree-holder has brought the above suit in collusion with the remaining defendants including his father.

5. The above application of the petitioner was registered as Miscellaneous Judicial Case No. 7 of 1976, notice was directed to be issued to the Opposite party and delivery of possession was stayed on the 12th March, 1976. Three days time was allowed to the petitioner for filing requisites etc. for issue of the notice. The order dated the 19th March, 1976, shows that no step was taken by the petitioner and three days further time was allowed to take steps for service of notice on the Opposite Party, fixing the 9th April, 1976, for return. It seems, on the same day the decree holder appeared and filed Hazri and the case was directed to be put up on the 9th April, 1976, the date already fixed in the miscellaneous judicial case. On the 9th April, 1976, the applicant-petitioner filed Hazri and the decree-holder Opposite party appeared through a lawyer and filed a show cause. The court ordered the matter to be put up on the 10th April, 1976, in the presence of both the parties, “for hearing in admission matter,” and, on that date, after hearing learned Counsel for the parties, the impugned order was passed.

6. Mr. S.C Ghose, learned counsel for the petitioner, has urged that the miscellaneous Judicial case under Order XXI, Rule 58, of the Code having been registered by the executing court on the 12th March, 1976, and notices having been issued to the Opposite Party, the executing court could not dismiss it summarily, without investigating the claim of the petitioner. Learned Counsel further urged that no opportunity had been given to the petitioner to substantiate the allegations contained in his claim application. He has relied upon the Patna amendment Rule 58 of Order XXI of the Code, relevant portion of which reads as follows:—

“58(1) When any claim is preferred to any property the subject matter of execution proceedings, or any objection is made to the attachment thereof, on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects as if he were a party to the suit;

Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.”

7. A reference to the Patna amendment of the said Rule will show that it is of a wider import, inasmuch as it does not only provide for filing an objection against attachment, but also provides for filing of any claim in respect of a property which is a subject matter of an execution proceeding, including any Claim against delivery of possession, as in the instant case, Mr. Ghose contends that once the objection has been admitted, the court shall proceed to investigate the claim or objection and in such a situation, the proviso to Rule 58(1) will not come in operation at all.

8. It is true that ordinarily and generally when a claim application under Order XXI Rule 58(1) of the Code is filed and is admitted by a court, the court will investigate the claim or objection. But, it cannot be laid down as a principle of law that in no case the court will exercise its power under the proviso to the said rule, even if it is brought to its notice that the objector was nobody else than the judgment-debtor's son and the court was satisfied that the objection was with a view to delay the delivery of possession and was designedly belated. In the instant case, the objection filed by the petitioner, nowhere indicates, even by implication, that he is the son of the judgment-debtor. The petitioner has described himself as “Subhas Chandra son of Sri Lajpat Rai”, and has differently mentioned his father's name as “Lajpat Rai Seth”, who was Defendant No. 2 (Opposite Party no. 3). Therefore, in such a situation, when the show cause was filed before the court by the decree-holder, disclosing the aforesaid facts, it cannot be held for any moment that the Court was powerless to put the matter for hearing on admission in the presence of the parties. The registering of a miscellaneous Judicial case, in ignorance of the full facts, on account of deception practised by the petitioner and issuing of notices, will not be such a matter as to preclude the court in resorting to the proviso, when full facts are brought before it. Any other construction will amount to putting premium in favour of those who want to mislead the court.

9. Mr. Ghose has relied on a single Judge decision of the Allahabad High Court in the case of Agrawal Pathshala v. Karim Bux . A.I.R 1969 Alld. 139.. That decision is clearly distinguishable. In that case the learned Single Judge of the Allahabad High Court was concerned with a situation, where the objection was filed within 5 days of the knowledge of the attachment and within 25 days of the attachment itself. The Munsif, two years after the filing of the objection, rejected it on the ground that the objection was designedly and unnecessarily belated. This order was set aside by the learned Single Judge, who held that there was no evidence in support of the finding of the Munsif about the unnecessary delay in filing of the objection, so as to justify the order of dismissal. The learned Single Judge, as a matter of fact, also found that there was no delay in filing the objection and there was no evidence on the record to show that the objector had any prior knowledge of the attachment, as alleged by the decree-holder. Therefore, the observation made in the Allahabad High Court judgment that the power under the proviso cannot be exercised, if the court has started investigation of the case on merit, is clearly in the nature of obiter.

10. It may be stated that after the impugned order was passed and during the pendency of this Civil Revision application, numerous amendments in the Code of Civil Procedure have been brought in by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). By a notification dated the 14th January, 1977, published in the Gazette of India, Part II, Section 3(i) of the date, the Central Government, in exercise of the powers under Sub-Section (2) of Section 1 of the Amendment Act (Act 104 of 1976), has fixed the 1st of February, 1977, as the date on which the provisions of the said Act, except sections 12, 13 and 50, would come into force. By the same notification, the 1st of May, 1977, was the date fixed for coming into force of the provisions of Sections 12 and 50. The Amending Act has made changes in Order XXI, Rule 58, as well and the relevant portion of Rule 58, after Amendment, reads as follows:—

“(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 entertained—

(a). Where, before the claim is preferred or objection is made, the property attached has already been sold; or,

(b). Where the Court considers that the claim or objection was designedly or unnecessarily delayed.”

11. Under the aforesaid provision, it is apparent that the right to file a claim or objection is limited to attachment of the property, that is to say, the wide scope of Rule 58 of Order XXI as amended by the Patna High Court, entitling a claimant to prefer any claim in execution proceeding, as in the Instant case, no longer subsists. Sub-Section (1) of Section 97 of the Amending Act (Act 104 of 1976) deals with the repealing provisions and it is laid down therein that “Any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.” Sub-section (2) deals with saving clauses and clause (q) thereof, which is relevant for our purpose, reads as follows:—

“(q). The provisions of Rules 31, 32, 48A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule, as amended or as the case may be, substituted or inserted by Section 72 of this Act, shall not apply to or affect—

(i) any attachment subsisting immediately before the commencement of the said section 72, or,

(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or,

(iii) Any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force;

12. I have referred to the aforesaid provisions for indicating the present legal position.

13. Mr. R.S Chatterjee, learned Counsel appearing on behalf of the Opposite Party, has contended that the petitioner's remedy has been by way of a suit and it is not a fit case in which this Court should interfere, in exercise of its powers under the amended provisions of Section 115 of the Code of Civil Procedure. Learned Counsel has submitted that the present case is covered neither by proviso (a), nor (b) of sub-section (1) of Section 115 of the Code. Be that as it may, after going through the order under revision, and in the background of the facts stated above, I do not find that the order of the court below suffers from any infirmity which requires the order to be set aside in exercise of the revisional jurisdiction of this Court. The learned Subordinate Judge has observed that in the first instance the Judgment-debtor Lajpat Rai Seth has contested the execution proceeding at all the stages to the best of his ability, then his brother tried his best to obstruct the execution of the decree. In that background, the court has disbelieved the fact that the petitioner, who is nonetheless other than the son of the judgment-debtor, Lajpat Rai Seth, had no knowledge of the suit as well as of the execution proceeding, and it has further found that it is more than obvious that the claim by the petitioner is not only designedly and unnecessarily delayed, but is a mala fide one, in that he claims to carry on the cloth business in the premises in question under his tenancy. The court below has also referred to certain observations made by the learned District Judge of Dhanbad, in his order dated the 8th March, 1976, with which it has fully agreed, and, after taking into consideration everything, it has refused to investigate the claim of the petitioner and rejected it summarily. I do not think, it is a fit case in which the impugned order requires any interference from this Court in exercise of its revisional jurisdiction. This application is accordingly dismissed, but, in the circumstances of the case, there will be no order as to costs.