JUDGMENT : Ahmad, C.J. - These two appeals arise from two different suits, but they have been heard together as there is a common question of law involved in both of them. The short question that falls for consideration in both these appeals is whether a suit constituted under Order 21, Rule 63, CPC is attracted by the mischief of Section 80 Code of Civil Procedure; or, in other words, whether a suit framed under Order 21, Rule 63, Code of Civil Procedure, is maintainable in law in the absence of notice u/s 80, Code of Civil Procedure. 2. The relevant and important facts bearing on the consideration of this question are these: The State of Orissa who have been impleaded as the common Defendant No. 1 in both the suits giving rise to these appeals had a Small Cause Court decree against one Anand Chandra Kanungo who has been impleaded in the two suits as the common Defendant No. 2. In due course that decree was put under execution in Execution Case No. 64 of 1952 and certain properties of the judgment debtor, Anand Chandra Kanungo were got attached. That gave rise to two claim cases under Order 21, Rule 58, Code of Civil Procedure, brought by two claimants; (i) Gouri Charan Kanungo who is the Plaintiff in the suit giving rise to Second Appeal No. 462 of 1963 and (ii) Radha Raman Kanungo who is the Plaintiff in the suit giving rise to Second Appeal No. 463 of 1963. It appears that, originally the judgment debtor, Anand Chandra Kanungo and Radha Raman Kanungo being members of a common family were cosharers. The common case set up by the two claimants against the attachment of the respective properties claimed by each of them was that subsequently there was partition effected in the family in the courses of which the respective properties claimed by each of them fen exclusively to their respective branches of the family and, as such, they were then as the heirs and successors of their respective branches in exclusive possession thereof. 3. The property claimed by Gouri Charan Kanungo, covers an area of about eight decimals appertaining to plot Nos. 223, 264, 265 while the claim set up by the other claimant, Radha Raman Kanungo, relates to an area of 36 decimals appear-taining to plot Nos. 155, 157, 254 and 158. 3. The property claimed by Gouri Charan Kanungo, covers an area of about eight decimals appertaining to plot Nos. 223, 264, 265 while the claim set up by the other claimant, Radha Raman Kanungo, relates to an area of 36 decimals appear-taining to plot Nos. 155, 157, 254 and 158. But it so happened that both these claim cases were eventually, on 20th August 1960, dismissed for default. Accordingly, thereafter, they instituted the two suits as provided in Order 21, Rule 63, Code of Civil Procedure-each in respect of the properties claimed by him. The suit brought by Gouri Charan Kanungo who is Respondent No. 1 in Second Appeal No. 462 of 1963 was number as Title Suit No. 176 of 1961 and the other brought by Radha Raman Kanungo who is Respondent No. 1 in Second Appeal No. 463 of 1963 was numbered as Title Suit No. 175 of 1961. In both the suits the State of Orissa -who are the common Appellants in the two appeals-raised a preliminary objection that the suits as framed were not maintainable in law for want of notice u/s 80, Code of Civil Procedure. The other common Defendant namely Anand Chandra Kanungo did not put in appearance in either of the two suits. 4. The trial Court on the 18th December, 1961, after hearing the parties present before it, upheld the preliminary objection raised by the State of Orissa and finally, in both the suits ordered that "the plaint is rejected under Order 7, Rule 11(d), Code of Civil Procedure". This was followed by appeal by both the Plaintiffs. In appeal the order of the trial court was reversed and both the appeals were allowed on the 15th July 1963. The lower appellate Court held that "I do not think that a mere non-service of notice u/s 80, Code of Civil Procedure, in a suit under Order 21, Rule 63, is fatal to the suit". Accordingly, in the of them it finally concluded that "the judgment and decree of the learned Munsif are set aside. The suit may be re-admitted by the learned Munsif and tried on the other issues involved in the suit". It is against this order that the State of Orissa have now come in second appeal to this Court. Accordingly, in the of them it finally concluded that "the judgment and decree of the learned Munsif are set aside. The suit may be re-admitted by the learned Munsif and tried on the other issues involved in the suit". It is against this order that the State of Orissa have now come in second appeal to this Court. Originally both the second appeals were on the 11th February 1965 placed for hearing before our brother, Barman, J. sitting singly. But the learned Judge, on hearing the parties ordered that "in view of the point involved in this appeal let this appeal be heard by a larger Bench". That is how this appeals are now before us for hearing. 5. It is the admitted case of the parties that in neither of the two suits there was any notice taken out by the Plaintiffs u/s 80, Code of Civil Procedure, and much less served on the State of Orissa. Hence the preliminary objection as already stated that for want of notice u/s 80, Code of Civil Procedure, the suits as constituted under Order 21, Rule 63 are not maintainable in law. 6. The court of first instance, in answering this question came to the conclusion that "the suit referred to in Section 80, CPC means all the suits including the suits under Order 21, Rule 63, Code of Civil Procedure". Accordingly, following the rule of law as laid down by the Supreme Court in the case of The State of Madras Vs. C.P. Agencies and Another it held that as such these suits were not maintainable. 7. Now so far as the decision in The State of Madras Vs. C.P. Agencies and Another is concerned that, in my opinion, does not at all deal with the point that is involved here. It simply explains the nature and scope of Section 80, Code of Civil Procedure, and finally lays down the general rule as to its uniform application to all suits as contemplated thereunder, namely as already held by the Judicial Committee of the Privy Council in AIR 1927 176 (Privy Council), that Section 80, Code of Civil Procedure, is "explicit, mandatory and admits of no implication or exception". In other word, that the decision holds is that once there is a suit of the nature as contemplated by Section 80, Code of Civil Procedure, it is incontrovertibly and without any exception, attracted by its mischief-which has again been stressed by the Supreme Court in its subsequent decision in the case of S.N. Dutt Vs. Union of India (UOI). Here, there is no controversy as to this general principle of law as laid down in all these cases; and howsoever wide it may be in its scope, it does not, as already stated, relate to the point which has been raised before us in the present appeals. The question raised here is not that notwithstanding the fact that the suits, as constituted here are of the nature as contemplated by Section 80, Code of Civil Procedure, they are not attracted by its mischief. On the contrary, the question raised here is whether a suit as those here framed and constituted under Order 21, Rule 63, CPC by a claimant whose claim to the property in suit has already been rejected under Order 21, Rule 58, Code of Civil Procedure, is a 'suit' within the meaning of that word as used in Section 80. If it is found that a suit as framed and constituted under Order 21, Rule 63, is not a suit within the meaning of that word as used in Section 80, it necessarily follows that the requirement of notice as laid down in Section 80 will not apply to it. But if it is established that such a suit is included in the definition of the word 'suit' as used in Section 80, there is no escape from the conclusion, as laid down in The State of Madras Vs. C.P. Agencies and Another that that too will have to comply with the mandatory requirements of notice as laid down therein; otherwise it will have to be thrown out in limine on the simple ground of want of notice. Therefore, what has to be mainly investigated in the present controversy is whether a suit constituted and framed under Order 21, Rule 63, Code of Civil Procedure, is a 'suit' as contemplated by Section 80. 8. Therefore, what has to be mainly investigated in the present controversy is whether a suit constituted and framed under Order 21, Rule 63, Code of Civil Procedure, is a 'suit' as contemplated by Section 80. 8. Section 80, Civil Procedure, inter alia so far as is relevant for our present purposes, lays down that- No suit shall be instituted against Government...or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered to or left at the office. It is therefore obvious that there under the cause of action of the suit has to be based on some act purporting to be done by a public officer in his official capacity. As such, once it is found that in a suit the cause of action as alleged in the plaint is not based on an act purporting to be done by a public officer in his official capacity, the suit would not be one as contemplated in Section 80. Judged from this point of view therefore we have to find out whether in a suit framed under Order 21, Rule 63, CPC the Cause of action is based on any act purporting to be done by a public officer in his official capacity or is based on something other than that. 9. Order 21, Rule 63, CPC reads: Where a claim or objection is preferred the party against whom the order is made may institute a suit to establish the right which he claims to the properties in dispute, but subject to the result of such suit, if any, the order shall be conclusive. In substance, therefore, the cause of action in a suit constituted under Order 21, Rule 63, CPC is based on the order of the Court whereby the claim made under Order 21, Rule 58, Civil Procedure is rejected, and not on any act purporting to be done by a public officer in his official capacity. In substance, therefore, the cause of action in a suit constituted under Order 21, Rule 63, CPC is based on the order of the Court whereby the claim made under Order 21, Rule 58, Civil Procedure is rejected, and not on any act purporting to be done by a public officer in his official capacity. In Phulkumari v. Ghanashyam Misra 35 Indian Appeals 22, the Judicial Committee of the Privy Council while dealing with the nature of a suit contemplated by Order 21, Rule 63 though in a different context, has observed (at page 24): This claim was rejected by the Subordinate Judge on April 24, 1899 and his decree is the cause of action in the suit which gives rise to this appeal. Therefore, this authority fully lends support to the view that in Order 21, Rule 63 (or its predecessor Section 283 of the CPC of 1882) what is involved is the right to sue for the establishment of the claimant's right which the Subordinate Judge negatived by his order passed in the proceeding taken under Order 21, Rule 58, Code of Civil Procedure, and not any act purporting to be done by any public officer in his official capacity. Therefore, apart from any other consideration this approach alone makes it clear that a suit framed under Order 21, Rule 63, CPC is not a 'suit' within the meaning of that word, as used in Section 80, Code of Civil Procedure. 10. But even when looked at from another point of view, namely whether a suit framed under Order, 21, Rule 63, Code of Civil Procedure, is a proceeding instituted by the presentation of a plaint in the court of original jurisdiction, as is generally meant by the word "suit" we come to the same conclusion. 11. The word "suit" is not defined in the Code of Civil Procedure, or in the General Clauses Act, and in fact it has got different meanings in different statutes according to the context. Therefore, the mere form of the proceeding will not be decisive on the question a to whether the proceeding is in reality a suit within the meaning of the word as used in a particular statute. In Section 26 of the Code there is, however, some indication given at least as to how a suit is to be institued. Therefore, the mere form of the proceeding will not be decisive on the question a to whether the proceeding is in reality a suit within the meaning of the word as used in a particular statute. In Section 26 of the Code there is, however, some indication given at least as to how a suit is to be institued. That section says: Every suit shall be institued by the presentation of a plaint and in such other manner as may be prescribed. That means that a suit has to be essentially a proceeding taken in a court of original jurisdiction. Necessarily, therefore, in no case the word "suit" as used in Section 26, CPC can include any proceeding in the course of a suit nor proceedings arising from the suit and continued in a higher court like appeal from an interlocutory or final order passed in the suit. In other words, a proceeding which is substantially not a proceeding brought in the court of original jurisdiction and is, for all practical purposes, in the nature of an appeal or review is not a suit in the sense as stated above, and I see no reason why the word 'suit' as used in Section 80, Code of Civil Procedure, should not be read as having the same import and meaning. 12. Now, so far as a suit framed under Order 21, Rule 63, CPC is concerned, that may, in form, have the appearance of a suit but in substance and spirit-notwithstanding its form-is not a proceeding taken for the first time in a court of original jurisdiction. In fact such a proceeding is initially taken up for the first time in the form of a petition under Order 21, Rule 58, Code of Civil Procedure, and as the proceeding taken there under is of a summary character, the Code, instead of providing the ordinary procedure of appeal against an order passed therein, gives, under Order 21, Rule 63 a full fledged remedy in the form of a suit, in order to give finer and better opportunity to the Plaintiff in that suit for getting that order more elaborately reviewed and the claim made by him in the earlier proceeding under Order 21, Rule 53, more fully weighed and considered. It cannot be gainsaid that a proceeding under Order 21, Rule 58, is a summary proceeding and if a simple appeal had been provided against an order passed in such a proceeding, there would have been no opportunity available to party aggrieved by that order, to agitate the matter in a fuller and more exhaustive manner. Therefore, in order to achieve that end, the remedy by way of appeal has been, under Order 21, Rule 63, given the form of a suit. As such, in substance, the proceeding under Order 21, Rule 63 is nothing but a form of appeal or review against an order passed in the summary proceeding under Order 21, Rule 58, as observed by the Judicial Committee in the aforesaid case of Phulkumari v. Ghanashyam Misra 35 Indian Appeals 22. Therein, while dealing with Section 283, Code of Civil Procedure, 1882 (corresponding to Order 21, Rule 63) their Lordships have observed: But this is merely a verbal or formal difference and Section 283 of the CPC under which section the action is brought, recognises such a suit as not merely an appropriate but the only mode of obtaining review in such cases. Accordingly therein the view taken by the parties to the suit in regard to its nature has been strongly objected to in these words: Misled by the form of action directed by Section 283, both parties have treated the action as if it were not simply a form of appeal, but as if it were unrelated to any decree forming the cause of action. This shows that as to the nature of such a suit the view taken by their Lordships of the Judicial Committee is unequivocal and it has been in substance considered as a proceeding by way of appeal or review. No doubt these observations were made therein in reference to court fee matter. But that I think can be no valid ground for holding that they will not be so when the same is discussed in a slightly different context. No doubt these observations were made therein in reference to court fee matter. But that I think can be no valid ground for holding that they will not be so when the same is discussed in a slightly different context. In any case, this much seems to be established that practically all the courts in our country have uniformly interpreted these observations to mean that a suit framed under Order 21, Rule 63, Code of Civil Procedure, is substantially speaking a proceeding by way of review or appeal of the summary order passed in the proceeding under Order 21, Rule 58, CPC and as such the requirement of notice as laid down in Section 80 is not necessary to be complied therein. They are as follows S.A. Rajamier Vs. M.R.M.A. Subramaniam Chettiar and Others Muhammad Yusuf Sahib Vs. The Province of Madras Mt. Bas Kuar Vs. Gaya Municipality and Others Hiraluxmi Pandit Vs. Income Tax Officer Hussain Ali Mirza Vs. State of Andhra Pradesh Union of India (UOI) Vs. Parvati Kuwar and Others Nawab Syed Mahammad Hashim Ali Khan and Another Vs. Iffat Ara Hamidi Begum and Others Ram Sundri alias Sham Sundri Vs. Collector, Ludhiana and Others AIR 1937 473 (Rangoon), AIR 1937 13, Khairullah Seth v. Dhan Rupmal AIR 1925 Nag 82. In all these cases a suit instituted to set aside an order passed in a summary proceeding like the one under Order 21, Rule 63 is held to be a continuation of the proceedings in the claim petition and as such no notice as contemplated by Section 80, CPC is found to be required for filing the same. In fact the facts of the case, Nawab Syed Mahammad Hashim Ali Khan and Another Vs. Iffat Ara Hamidi Begum and Others are, for all practical purposes, substantially the same as here. Therein, Mitter J. while dealing with this question observed: The provisions of Order 21, Rule 58, and the following rules of that Order upto Rule 63, is a reasonable adjustment of two principles: The first is that a judgment-creditor should have the fruits of his decree as quickly as possible, and the other principle is that a third party should not be allowed to be harassed by the decree-holder's attempt to take in execution his property. The adjustment is m de by allowing the third party to intervene in the execution proceedings as a claimant but the first principle which keeps in view the interest of the decree-holder requires that the claim proceedings should not be prolonged, for that would delay execution. Hence the investigation of the claim by the executing Court must be of a summary nature, ordinarily to be decided on the basis of possession. The summary nature of the investigation of the claim by the executing Court requires, in the interests of justice, that the party against whom an adverse order is made by the executing Court should be given the opportunity, within a short period of time to reagitate in a more detailed form, the question of his claim in a regular suit. From this it follows that the issue that can be raised in a suit instituted under the provisions of Order 21, Rule 63 must, in essence be of the same nature as the issue in the claim case in the executing Court, although the ambit of the enquiry of that issue would be more detailed in the suit. In the execution proceedings the judgment-debtor cannot challenge the validity of the decree under execution on the ground of fraud and the claimant can only urge that the property attached is his property and not of the judgment debtor. He cannot urge that the decree is bad or even the execution is barred by time. (A.I.R. 1921 Pat 311,. AIR 1929 Rangoon 152.) As possession is prima facie evidence of title an investigation based on the evidence of possession would be a rough and ready and expeditious mode of investigation of the claim by the executing Court. That that issue, namely whether the property at the date of attachment was the property of the judgment-debtor or of the claimant can be the only issue in a suit under Order 21, Rule 63 (apart from the issues in bar e.g. of limitation) is also indicated by the language of Order 21, Rule 63 itself for that rule speaks of a suit to establish the right which he claims to the property in dispute. A suit under that rule is in essence a review of the summary order passed by the executing Court on the claim. Phulkumari v. Ghanashyam Misra 35 Indian Appeals 22 1141 at page 24. A suit under that rule is in essence a review of the summary order passed by the executing Court on the claim. Phulkumari v. Ghanashyam Misra 35 Indian Appeals 22 1141 at page 24. It is a mere continuation, in a different forum, of the claim proceeding: 17 Patna 588. In my opinion, this decision, if I may say so with all respect, fully clarifies the nature of a suit framed under Order 21, Rule 63 and on an elaborate consideration of the entire matter lays down that such a suit is nothing but a continuation of the claim proceeding in a different forum and essentially a proceeding by way of review or appeal of the summary order passed under Order 21, Rule 58, Code of Civil Procedure. 13. There are however, as against this view, two cases brought to our notice by the learned Advocate-General appearing for the State which prima facie seems to lend support to the view that a suit brought under Order 21, Rule 63, Code of Civil Procedure, is not a continuation of the claim proceeding, but an independent action and therefore notice u/s 80, CPC is necessary for its maintainability in case such a suit is directed against either Government or a public officer as contemplated therein. They are the decisions in Sangakheda Society v. Ayodhyaprasad AIR 1939 Nag 232, and AIR 1941 Lahore 392 . Both these cases have been considered by the Allahabad High Court in Firm Kachauri Mal-Kalyan Mal Vs. Firm Wali Muhammad Abdul Latif, and have been, if I may say so with all respect, rightly held as distinguishable. In Sangakheda Society v. Ayodhyaprasad AIR 1939 Nag 232, the suit was brought against a summary order passed by the Liquidator appointed u/s 42 of the Co-operative Societies Act rejecting the objection of a claimant that the properties attached in that case belonged to him. But there is no discussion made therein as to what was the nature of the enquiry that was made thereunder by the Liquidator. The entire matter seems to have been disposed of on a consideration of two simple points (1) that the Liquidator was a public officer and (2) that Section 80 CPC as explained by the Judicial Committee in AIR 1927 176 (Privy Council), was "explicit, mandatory and admits of no implications or exceptions". The entire matter seems to have been disposed of on a consideration of two simple points (1) that the Liquidator was a public officer and (2) that Section 80 CPC as explained by the Judicial Committee in AIR 1927 176 (Privy Council), was "explicit, mandatory and admits of no implications or exceptions". In other words there is no discussion made therein as to the considerations which have been referred to above. In that view of the matter that decision can have no binding authority. Then there is the other case, AIR 1941 Lahore 392 . That is a Full Bench decision of the Lahore High Court. But the facts of the case are entirely different. The decision therein depended on the consideration as to whether a suit under Order 21, Rule 63, CPC was attacted by the provisions of Section 171 of the Companies Act. In other words, the question for consideration there was whether a person wishing to bring a suit under Order 21, Rule 63, CPC against a company in liquidation must first obtain leave u/s 171 of the Companies Act, from the Court which made the order. That means, there was no discussion made therein in regard to the nature of the suit as contemplated by Section 80, Code of Civil Procedure. Therefore that authority can have no direct bearing on the question raised here. Thus neither of the two authorities cited by the learned Advocate-General can be of any avail to him in support of his proposition. In the result, therefore, I hold that a suit framed under Order 21, Rule 63, CPC is not a suit within the meaning of that word as used in Section 80 of the Code; as such the requirements of notice as laid down there under are not necessary to be complied with in such a suit. That is a suit which is, in essence, in the nature of a review or appeal of an order passed in a proceeding under Order 21, Rule 58; and in any case the cause of action in such a suit is not based on any act purporting to be done by any public officer in his official capacity as required u/s 58, Code of Civil Procedure, but is based on an order passed by Court under Order 21, Rule 58, Code of Civil Procedure. For these reasons both the appeals fail. For these reasons both the appeals fail. They are accordingly dismissed and the two suits giving rise to the appeals are remitted to the trial Court for disposal on merit in accordance with law. But in the circumstances, there will be no order for costs. Das, J. I agree. Final Result : Dismissed