Judgment :- 1. Two questions raised in this second appeal are these: (1) Whether a claim preferred under 0.21 R.58 of the Code of Civil Procedure (for short 'the Code') is subject to any period of limitation. (2) Whether the question that the claim was designedly or unnecessarily delayed can be gone into after reception of evidence. The first court found, on facts, that the claim is not barred by limitation. The lower appellate court did not advert to that question, but declined to consider that the claim is designedly or unnecessarily delayed on the premise that the court is not competent to consider it after recording evidence. 2. The appellant is the holder of a money decree against the second respondent who is the judgment-debtor. In execution of a decree, the appellant attached the property, which is in dispute in this case, on 1-9-1976. All steps were completed for bringing the property to sale. Almost four years after the attachment i. e., on 7-8-1980 the first respondent (claimant) filed a petition under 0.21 R.58 of the Code contending that the attached property was gifted by the judgment-debtor to the first respondent as early as 16-3-1972. The decree-holder appellant raised different contentions the material among them being that the claim is barred by limitation and that the alleged gift deed is a sham document executed by the judgment-debtor in favour of the first respondent who is none other than his nephew, for defeating the creditors. Execution court held that there is no substance in the contention regarding the bar of limitation as "there is no evidence in this case to show that the petitioner (first respondent herein) was aware of the attachment on any day prior to the date alleged by him". Learned Sub Judge who disposed of the appeal dealt with the contention regarding delay in the following lines: "The respondent's counsel has placed reliance on A. 1. R.1980 Patna 136 wherein it is stated that rejection of application under 0.21 R.58 on the ground of delay ought to have been done before going into the merits. Once application is decided on merits, courts cannot go back to proviso. In this case evidence was recorded both oral and documentary and hence on the basis of the above quoted ruling the court was not competent to reject the application as per the proviso". Once application is decided on merits, courts cannot go back to proviso. In this case evidence was recorded both oral and documentary and hence on the basis of the above quoted ruling the court was not competent to reject the application as per the proviso". The question of bar of limitation, though urged before the learned Sub Judge, as noted by him in the judgment, was not dealt with by him. 3. Sri. K. C. John, learned counsel for the first respondent, in the course of his arguments said that to the best of his knowledges one of the law reports contains a decision in which a claim petition was held to be barred by limitation. He invited my attention to the editor's note in the A. 1. R. Comment arise by Manohar and Chitaley (at page 104 in Volume-4 of the 10th edition of "The Code of Civil Procedure") which reads thus: "Except the proviso which provides that there shall be no designed or unnecessary delay, there is no limitation for filing the application". But the aforesaid opinion of the editor cannot have the persuasive effect which a judicial pronouncement has. It should be observed that the editor has not 'referred to any decision to support the said note, nor could the learned counsel trace out any case law in support thereof. Hence the question has to be decided by me without the aid of case law on that point. The relevant portions of 0.21 R.58(1) of the Code are extracted below: "Where any claim is preferred 10, 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) (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed." The contention on behalf of the first respondent is that where there is a special provision in the Rule appertaining to delay, such special provision will supersede the general provision. According to the counsel, Clause (b) of the proviso is a special provision having relation to the question of delay in filing the application and hence no other provision relating to limitation would come into play. According to the counsel, Clause (b) of the proviso is a special provision having relation to the question of delay in filing the application and hence no other provision relating to limitation would come into play. It requires much strain to accede to the contention that the provision which enables the court to reject a claim on the ground that it is designedly or unnecessarily delayed is in supersession or abrogation of the provisions of the Limitation Act. In some cases even a week's delay may appear to be designed or unnecessarily whereas in some other cases there may be justification even for the delay of three years. The question whether there is unjustifiable delay has to be decided on the facts of each case. Clause (b) of the proviso confers power on the court to consider, on merits, any claim which is designedly or unnecessarily delayed, notwithstanding the length or short of the delay. There is nothing in Clause (b) to suggest that the provision is intended to be a substitute for the provisions of the Limitation Act. 4. It is Art.137 of the Schedule of the Limitation Act which is sought to be applied in this case. It is the residuary article for applications as could be noticed from the wording of the article. "Any other application for which no period of limitation is provided elsewhere in this Division". (Article 137 falls within the third Division of the schedule). A period of three years commencing from the date of accrual of the right to apply is fixed for all applications. If at all any article of the Limitation Act applies to such claims, there can be no doubt that it is Art.137 and no other. S.2 (b) of the Limitation Act defines "application" as including "a petition". As per S.2(a) "applicant" includes a petitioner. With the pronouncement of the decision of the Supreme Court in K. S. E. B. v. T. P. K. (1976 K. L. T. 810) the scope of Art.137 is understood to be of wide range. This is what the Supreme Court said: "The changed definition of the words 'applicant' and 'application' contained in Ss.2 (a) and 2 (b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Art.181. This is what the Supreme Court said: "The changed definition of the words 'applicant' and 'application' contained in Ss.2 (a) and 2 (b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Art.181. of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Art.137 of the 1963 Limitation Act... Therefore, Art.137 will apply to any petition or application filed under any Act to a civil court", (emphasis supplied). Of course, the question which the Supreme Court has considered in that decision is whether Art.137 can be invoked when applications other than those envisaged in the CPC are filed. Even so, the decision has pointed to the wide sweep of the Article. If a claim preferred under 0.21 R.58 of the Code is to be treated as an application (or a petition) there is practically no scope for excluding it from the period prescribed in the residuary article of the third Division. 5. In Black's Law Dictionary "petition" is defined as "a written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favour, privilege, or license". A second meaning given to it is this: "A formal, written application to a court requesting judicial action on a certain matter". In "Law Lexicon" (by P, Ramanatha Aiyar) an application is defined as "a request to a judicial officer". In P. Philip v. Director of Enforcement ((1976) 2S.C.C.174) the Supreme Court said that the "application" is synonymous with the "petition" and it means a written statement of material facts requesting the court to grant a relief or remedy based on those facts. R.324 of the Kerala Civil Rules of Practice provides that "an application by a claimant or objector under Order XXI, R.58 of the Code shall be made by a verified petition entitled in the execution petition under which the property in question has been attached and shall set forth the particulars of the claim in the manner prescribed for the plaint in a suit as Form No. 55". Of course it may be said that. Of course it may be said that. since rules of practice are formulated by delegated authority the expressions used in such rules would not be helpful to understand the meaning of the provisions of the parent statute. Be that as it may, the Code itself gives indication that a claim envisaged in 0.21 R.58 can be construed as an application (vide Form No. 26 in Appendix-E of the schedule to the Code). It is the form of notice to be issued to the party at whose instance the attachment is made, when a claim is preferred. The relevant portion of the Form reads thus: "Whereas (name) has made application to this Court for removal of attachment on...". The Forms also would make part of the Code. This indicates that Parliament also has considered the claim as an application. ". 6. The conclusion is that a claim preferred under 0.21 R.58 of the Code is an application. No application can elude from the tentacles of Art.137 of the Limitation Act, in view of the Supreme Court decision in K.S.E.B. v. T.P.K. (1976 K.L.T. 810). In this case the right prefer the claim petition has accrued to the first respondent on 1-9-1976 when the property was attached and hence a claim petition preferred after the expiry of three years therefrom is prima facie barred by limitation. The first respondent, is order to squirm out of the situation has alleged in the petition that he knew about the attachment only on the previous day of his filing the petition. This was specifically denied by the appellant in his counter. So, the burden is on the first respondent to prove that he came to know of the attachment only on the previous day of his filing the petition. But when he gave oral evidence, he did not say that his knowledge about the attachment was so near as that. In fact he did not mention anything about his knowledge of the attachment. Therefore, he cannot now be heard to say that he had knowledge about the attachment only on the previous day of his filing the application. 7. Even otherwise, the court should have considered whether the claim was designedly or unnecessarily delayed. In fact he did not mention anything about his knowledge of the attachment. Therefore, he cannot now be heard to say that he had knowledge about the attachment only on the previous day of his filing the application. 7. Even otherwise, the court should have considered whether the claim was designedly or unnecessarily delayed. The mere fact that evidence was recorded on the claim petition is not a ground to abdicate the functions of the court to consider whether the claim was designedly or unnecessarily delayed. In fact, the evidence may help the court to determine that question in a better way. The decision referred to by the learned Sub Judge In Sachida Prasad v. Giraja Prasad (AIR. 1980 Patna 136) does not in fact say that the ground of delay cannot be considered on merits after recording evidence. In that case a Division Bench of the Patna High Court has noted that the execution court has thoroughly investigated into the claims and after reviewing the evidence, came to a definite conclusion that the property of the claimant was liable to be released. In the aforesaid context the Division Bench made the following observation: "Having come to that conclusion, it would have no power to negative the claims on the basis of the proviso". It was pointed out by their Lordships that if a claim is preferred or objection made, the case has to be registered and then alone the question would arise whether the claims or objections may or may not be investigated. Nowhere in the decision it is said that consideration of the proviso would stand debarred once evidence has been let in. Learned Sub Judge has gone wrong in misreading the said decision of the Patna High Court. Nor does the proviso contain a limitation that the consideration thereunder shall not be made after recording evidence. However, in view of my finding that the claim is barred by limitation, it is unnecessary to go into the evidence to find whether it is designedly or unnecessarily delayed as per Clause (b) of the first proviso to R.58 of 0.21 of the Code. In the result, I allow this second appeal and set aside the judgment of the lower appellate court as well as the order of the execution court which upheld the claim. No costs.