Chandra Reddy, C.J.
1. The controversy- in this second appeal revolves round Order 38, Rules 6 and 8 read with Order 21, Rule 63 C. P. C., the question raised here being whether a suit is competent against an order upholding the objection of a claimant that the property in dispute belongs to her and not to the judgment-debtor.
2. The facts giving rise to this second appeal lie in a short compass and are not in dispute. The plaintiff in O. S. No. 257 of 1953, which has given rise to this appeal, filed O. S. No. 470 of 1952 against four persons on the foot of a promissory note executed by the first defendant therein, defendants 2 and 3 being his sons and defendant 4 being his sister, who is the 1st respondent in the second appeal.
3. The defence on behalf of the fourth defendant in O. S. No. 470 of 1952 was that she was not in any way liable as she was unconcerned with that debt.
4. Pending the suit, the plaintiff sought attachment of the property in disnute, under Order 38, Rule 5 C. P. C. The fourth defendant to the action, who was by that time absolved from all liability and the suit against her dismissed, claimed the attached property as hers as having been purchased in her name and with her own funds and not that of the first defendant.
5. The District Munsif investigated into this claim in E. A. No. 1144 of 1952, and, on the material that was placed before him, reached tried on-elusion:
'.....,. that the first defendant is not in possession of the attached property on his own account as his own property and on the other hand the kadapas, Exs. B-4 and B'5 and the receipts Exs. B-6 and B'6 fa) ..... clearly establish that the fourth defendant is in enjoyment of the attached property on her own behalf on the date of attachment.'
In the result, he directed release of the property from attachment and dismissed the petition.
6. The aggrieved plaintiff brought 6. S. No. 257 of 1953 for a declaration that the attached property really, belongs to the first defendant-first appellant and; that the sale deed was taken in the name of the second defendant-- second appellant, benami for the former.
7. The suit was resisted mainly by the successful claimant, namely, first defendant in this suit, who was the fourth defendant in the earlier suit, O. S. No. 470 of 1952, on the plea that title to the property in dispute vested in her and that the suit was not maintainable as order 'impugned could be appealed against under the provisions of Order 43 C. P. C.
8. The trial Court non-suited the plaintiff both on the ground that the sale deed in question was not benami for the second defendant i. e., the first defendant in the earlier suit that the first defendant, the successful claimant,' was the real purchaser of that property and that a suit for setting aside the order in the claim proceedings would not lie.
9. The matter was carried in appeal by the aggrieved plaintiff to the Subordinate Judge. The learned Judge, without going into the merits, upheld the decision of the District Munsif concurring in his opinion as to the maintainability of the suit. Hence, the second appeal.
10. The question that falls for decision in the appeal is whether such a suit is barred and whether an appeal against the order under attack would lie under Order 43, Rule 1, Clause (q) G. P. C.
11. At this stage, it is profitable to look at the relevant provisions of the Civil Procedure Code. Attachment before judgment of property is permissible under Order 38, Rule 5 C. P. C. That rule enacts:-
'(1) Where, at any stage of a suit, the Court is-satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him.--
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.
The Court may direct the defendant, within a time to be fixed by it either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said properly or the value of the same, 'or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion, of the property so specified.' Rule 6 recites:-
'(1) Where (he defendant fails to show cause why he should not furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such Cause or furnishes the required security, and the property specified or any portion of it has Keen attached, the Court shall order the attachment to be withdrawn or make such other order as it thinks fit.'
Rule 8 also is relevant in this enquiry and is as under:-
'Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money.'
12. Since one of the questions that calls for decision is whether an appeal is provided against an order like the one in question, under Order 43, Rule 1 Clause (q), we will notice that provision also.
'1. An appeal shall lie from the followingorders under the provisions of Section 104 namely:-
xx xx xx xx(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII.'
13. It is manifest that the right o appeal is conferred only against orders made under Rules2, 3 and 6. It is nobody's case that the instant case comes within the ambit of Rules 2 and 3. It is, therefore, unnecessary to extract those rules.
14. The principal point that falls to be determined is whether the order under attack is one made under Rule '6 or Rule 8. It is urged by Sri I. A. Naidu that the order that was sought to be set aside was one made under Rule 6 (2) for the reason that his client succeeded in having the attachment withdrawn by showing cause against the attachment and, consequently, it attracts Order 43, Rule 1, Clause (q). We do not think that this argument is admissible.
The expression 'where the defendant shows such cause' in Sub-rule (2) can have relevancy only to the 'cause' contemplated by Sub-rule (1), namely 'why the defendant should not furnish security', and has nothing to do with the 'cause' shown by a third party against the attachment of property, by setting up title to the property in himself or herself. There can be no doubt as to the denotation of the words 'where the defendant shows such cause'. It has reference only to the first part of Sub-rule (1) of Rule 6.
15. It is, therefore, difficult to construe the order assailed in the suit as one coming within the sweep of Rule 6 (2) of Order 38. The terms of the order make it abundantly clear that it was one made under Rule 8. The first respondent put forward a claim to the property alleging that the purchase was made by her and with her own funds and that it was not a benami transaction. In support of the respective contentions, both parties adduced evidence and the learned District Mutfsif investigated into the matter as envisaged by Rule 8 and decided in favour of the first respondent. The contents of the order complained against leave no room for any doubt that it was under Rule 8 that the enquiry was made and the finding was given in favour of the first respondent. That being the position, Order 43, Rule 1 (q) does not govern the instant case. It follows, that no appeal lies against the order in question.
16. The next point that has to be considered is whether the Court could take cognizance of a suit under Order 21, Rule 63 to remove the order complained against. It is noticeable from Order 38, Rule 8 the machinery set up under the Code for the investigation of claims is attracted to enquiries under Order 38, Rule 8 C. P. C. Is that confined only to Rule 58 of Order 21? In our opinion, all the rules bearing on investigation of claims and objections including Rule 63 govern the enquiries under Order 38, Rule 8 C. P. C. and an order on a claim petition can be assailed by means of a separate suit instituted within the period of limitation. The order on the claim petition being not a final one, the only way by which tie aggrieved party could avoid that order is by instituting a suit under Order 21, Rule 63 C. P. C. If he does not have recourse to Order 21, Rule 63, the, order becomes final and he would be precluded from attacking it in subsequent proceedings.
17. This view of ours gains support from a Full Rench Judgment of the Madras High Court in Mallikarjuna Prasada Naidu v. M. Virayya, ILR 41 Mad 849 : (AIR 1918 Mad 26) (FR), where it was laid down that Order 21, RULE 63 C. p. C. applies also-to orders On claims preferred to the property attached before judgment. To a like effect is the judgment of the Allahabad High Court in Hafiz Ahmad Ali Khan v. Anandsarup, AIR 1937 All 635. These rulings establish that an order made under Order 38, Rule 5 could be attacked in a suit under Order 21, Rule 63.
18. Viewed in any light, there can he no escape from -the conclusion that the suit was maintainable and it could not be dismissed on the ground that it was incompetent. The Subordinate Judge has not gone into the merits of the appeal'. We therefore, remand the matter to the Subordinate Judge for fresh disposal according to law.
19. In the result, the appeal is allowed, the judgment and decree of the lower appellate Court is set aside and the case is remanded to the lower appellate Court for fresh disposal according to law. The appellant will get his Costs in the second appeal.