1. The order on I.A No. 1852 of 1993 in O.S No. 208 of 1993 of the Sub Court, Tirur is under challenge in this revision. The above petition was filed by respondents 1 to 3 under Order XXX VIII Rule 8 and S. 151 of the Code of Civil Procedure, in which the revision petitioner was the second respondent. The suit was filed by one Bava Haji, the fourth respondent herein, against the petitioner for recovery of Rs. 67,200/-. He applied by I.A No. 1776 of 1993 for attachment of lorry KEF 9570, alleging inter alia that it belonged to the petitioner, employed abroad, that he was trying to take it out of the court's jurisdiction and sell it to deprive him of the fruits of the decree. The vehicle was then in the custody of the Judicial Magistrate of the First Class, Tirur in connection with a criminal complaint filed by his father against one Mohanan. The court below passed a prohibitory order under Order XXI Rule 52. In the affidavit filed in support of I.A 1852 of 1993, it was stated by respondents 1 to 3 herein that the lorry, which belonged to the revision petitioner, was sold to one Salim on 1-5-1993. The relevant documents, including R.C Book, were also handed over and necessary application also signed for effecting transfer in his name. While so on 5-9-93 Salim sold it to the third respondent, from whom the second respondent purchased it on 9-9-1993. He in turn sold it to the first respondent on 11-9-93. He is a bona fide purchaser for value and while in possession the vehicle was seized on a complaint filed by the petitioner's father against one Mohanan, to whom it was allegedly leased for nine months, which is a false story. The suit was instituted on a document fabricated in collusion between the petitioner and the fourth respondent to get possession of the vehicle, which had already been sold. The learned Magistrate, in the first instance, passed an order to release the vehicle to the first respondent, from whom it had been seized. But the order was challenged by the petitioner in Crl. M.C NO. 2175 of 1993 before this court and it was set aside, with a direction to abide by the verdict in the claim petition that was then pending before the Sub Court, Tirur. Eventually, by the impugned order, the petitioner's claim was rejected and that of respondents 1 to 3 upheld. The vehicle has been ordered to be returned to the first respondent, from whom it was seized.

2. Heard.

3. There is an interesting aspect in this case. The petitioner was one of the respondents in the claim petition and the person affected by the order, who was the fourth respondent, had not chosen to challenge it that perhaps suggested as rightly contended that the suit itself and I.A No. 1776 of 1993 filed under Order XXXVIII Rule 5 were filed in collusion between him and the petitioner to get the vehicle that had already gone out of possession. Nothing more need be said about this aspect now since I am not going into the merits of the matter in this revision petition.

4. A preliminary objection as to the maintainability of the revision was raised by counsel for respondents 1 to 3, who submitted that the impugned order was passed on a petition filed under Order XXXVIII Rule 8 C.P.C, that adjudication was made in the manner provided under Order XXI Rule 58, that under sub-rule (4) the order passed has the same force and is subject to the same conditions as to appeal or otherwise as if it were a decree, and, therefore a revision under S. 115 C.P.C was not maintainable. This contention seems to be well founded and I am inclined to accept the same. Indeed, after the vehicle was seized and while it was in the custody of the criminal court, the fourth respondent, plaintiff in O.S No. 208 of 1993, filed I.A No. 1776 of 1993 under Order XXXVIII Rule 5, on which an order was passed under Order XXI Rule 52 which gave rise to the claim that respondents 1 to3 preferred under Order XXI Rule 58. There, was an adjudication of the claim and against the order passed the aggrieved has a remedy under Order XXI Rule 58(4).

5. But then the petitioner's counsel submitted that the order is only deemed to be a decree and is not a decree as defined in S. 2(2) C.P.C, that law is not certain whether an appeal will lie as from a decree or as from an order and decisions on this question are conflicting. No doubt, there are conflicting decisions. But in my view there is not much scope for a confusion if the matter is considered in the right perspective. But the amendment Act, 104 of 1976, the old rules 58 to 63 of Order XXI have been substituted by rules 58 and 59. The important changes are:

“1. Where the Court entertains a claim or objection the court must investigate fully (and not summarily as before) and adjudicate upon all questions including questions of right, title and interest, in the attached property arising between the parties (Sub-rule (1) and (2).

2. An order passed after such investigation determining such question, has the force of a decree and the remedy of the party against whom the order is passed is by way of appeal and not by way of a suit (sub rule 3(d).

An order on a claim petition is subject to a suit under the present rule only if the Court has refused to entertain the claim or objection. (Sub-rule (5)).

3. Where the property attached is subject to a mortgage, charge or interest in favour of any person, the Court can continue the attachment”.

6. In the objects and reasons to the amendment it was stated that:

“Rules 58 to 63 deal with claims and objects in execution. At present the adjudication in execution has limited scope and die matter can be further agitated by way of a regular suit. In order to prevent protration of litigation, it is thought desirable to have all questions (including questions of title) settled finally in execution proceedings itself. This would be in keeping with the tenor of S. 47 wherein it is provided that all questions arising between parties to the suit relating to the execution, discharge and satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Rules 58 to 63 are being substituted accordingly”.

7. Under sub-rule (2) of Rule 58,—

“all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit”.

8. It is clear that by the provisions newly introduced what was originally a summary investigation into possession has now been made into a full investigation which would involve adjudication of the claims including right to title and interest over the attached property and the order passed upon such adjudication will be deemed to be a decree. As held by this Court in George Antony v. Kerala State Financial Corporation (1989 (1) KLT 486):

“The court is obliged to consider the title with all relevant matters as if it is a suit and considering the proceedings as a suit normally the claimant is to be treated as the plaintiff and the attaching decree-holder as the defendant”.

9. The words “as if it were a decree passed by him” appearing in S. 14 of Act 2/65 came up for consideration in M.V Ali v. Kunjannamma Philipose (1975 KLT 527) where it was held:

“The object of the fiction which this expression creates is to render the order executable as the decree of a Civil Court and that involves that the fiction could validly be carried to its logical conclusion, and the only inhibition is that a fiction should not be extended beyond its legitimate field. To hold that the fiction embodied in the expression “as if it were a decree passed by him” amounts to making an order of eviction a decree of the Munsiff and therefore of a Civil Court is only to give full play to the fiction and the object of its creation. This construction would attract not only the provisions of the Civil Procedure Code dealing with execution of decrees but also the provisions of Art. 136 which prescribes the period of limitation for the execution of decrees”.

10. Though it is by fiction that the order passed on a claim petition is deemed to be a decree, it is so all the same and has the same incidence. There is no reason to curtail the scope and amplitude of the fiction. As held in M. Venugopal v. Divisional Manager, L.I.C (1994) 2 SCJ 62):

“The effect of a deeming clause is well-known. Legislature can introduce a statutory fiction and courts have to proceed on the assumption that such state of affairs exists on the relevant date. In this connection, one is often reminded of what was said by Lord Asquith in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 (B), that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, inevitably have flowed from-one must not permit his “imagination to boggle” when it comes to the inevitably corollaries of that state of affairs”.

11. In Parvathy Ammo, Easwari Amma v. Kunjukunjamma Meenakshi Amma (1963 KLT 920 FB): it was held:

“Fictions of law were created to enable the court to do justice and where to indulge a fiction is to cause injustice, its just limit has been found. If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it”.

12. In my view, it is only consistent with the object of the provision to hold that the order passed on a claim petition is a decree and appealable as such.

13. In B.V Rao v. Subbaiab (AIR 1983 AP 170), the question that fell for decision was whether a Second Appeal or a Civil Revision Petition would lie to the High Court against the appellate order passed on an application under Order XXI Rule 58. It was observed:

“Under the amended provision of R. 58, in order to prevent the protraction of litigation, it has been provided that all questions including questions of title shall be finally determined in execution proceedings and this provision is in keeping with the tenor of S. 47 of the Code. sub-rule (4) declares that such an order passed on such adjudication shall have the same force and subject to the same conditions as to appeal or otherwise as if it were a decree. Thus under the provision itself an appeal lies to the appellate court under the Code and the question that falls for determination is whether a second appeal also lies which is not expressly conferred under said provision. It is well settled that even though no right of appeal is specifically conferred that if a question is referred to an established court all incidents attached to the procedure of that court including the right of appeal is attracted. As such when the right of appeal is conferred by the very provision itself i.e, O. 21, R. 58(4) there cannot be any doubt regarding the right of further appeal………………”

“Further more the present provision was introduced as per the 14th, 27th and 44th reports of the Law Commission. The intention of the Legislature starting from its preparation of the bill and adopting the change suggested by the Law Commission verbatim as evident from 27th report clearly incidates that the provision of O. 21R. 58 CPC must be an exhaustive remedy as a suit and the orders passed thereon must be treated as decrees without restricting any rights of appeal”.

14. But in Avinash Chander v. Mohan Lal, AIR 1984 P & H 391, it was held:

“The conjoint reading of all the provisions afore-referred to leads me to conclude that all claims to property, or objections to attachment of any property, attached in execution of a decree, on the ground that such property is not liable to attachment, whether preferred by the parties to the suit or their representatives, or third parties, are to be adjudicated under Order XXI, Rule 58 if eutertained by the Court and all questions, including questions relating to right, title or interest in the property attached, raised by such parties therein under this rule, are required to be determined by the Court dealing with the claim or objection and not by a separate suit Further, the order made on such determination is to have the same force as if it were a decree, but not being a decree itself. Furthermore, the order is subject to same conditions as to appeal or otherwise as if it were a decree without being a decree itself’.

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It is even otherwise in the context inconceivable that when questions relating to right, title or interest in the property attached can be adjudicated upon under Order XXI, Rule 58, and that too with the means of pleading and proof, evidence and inference, the Legislature in its wisdom considered this matter so light so as not to provide therefor an appellate avenue. Further still it appears innocuous that if the claim or objection is entertained by the Court, then its final order is not to be appealable, but if it is not entertained on account of prior sale of the property attached, or being unnecessarily or designedly delayed, the matter can be taken to Court in a suit where appellate avenues are available. If that is so, then the legislative change brought about is otiose. Why at all would anyone prefer a claim or objection and be worse off in one bout. He would rather file a suit straightway and not suffer an order as if a decree. There is an obvious advantage to settle those limited questions at the stage of execution itself if brought forward promptly and diligently before the executing Court. Thus, I am of the considered view that those questions which come within the ambit of Order XXI, Rule 58, even if they arise between the parties to the suit, or parties an amplified under S. 47(as is the case of the petitioner) or third parties are questions on the determination of which an appealable order would emerge and be appealable as such”.

15. But then their Lordships did not consider, in the particular context of the case, whether a Second Appeal would lie, but only observed that a revision against the appellate judgment was entertainable.

16. In Nookaraju v. M.S.N Charities, AIR 1994 AP 334, it was held:

“Order 21 Rule 58(4) declares that the order made under sub-rule (3) “will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree”. But thereby the order is declared to be a ‘deemed decree’ and not a ‘decree’ by itself. Order made under Rule 58(2) of Order XXI of the amended Code adjudicating the claim made against attachment of property in execution, therefore, has only the status of “deemed decree” and not a “decree” by itself. Such orders are not covered by the definition under S. 2(2) namely of “decree” so as to attract the provisions of S. 96 of the Civil Procedure Code. Only a “Miscellaneous Appeal” lies against such ‘order’ and not a Regular appeal”.

17. Several decisions were referred to including some of this court. AIR 1983 AP 166 was noticed and distinguished observing that the question that fell for decision there was different and was not of relevance. With respect, it seems to me, the learned judges were not justified to distinguish and to hold that the decision in that case dealt with a different question and was of no assistance to decide the issue that fell for Their Lordships’ consideration. The decision in AIR 1983 AP 166 has laid down the correct law.

18. In my view, against the impugned order the remedy is by way of a regular appeal as from a decree in a suit and that the present revision is unsustainable. It is hence dismissed, however without prejudice to the petitioner's right to file an appeal before the appropriate forum, if it is deemed fit and necessary to do so. I dismiss the Civil Revision Petition.

19. Dismissed.