JUDGMENT R.N. Sahay, J. This appeal by the plaintiffs who instituted a suit under order 21 rule 63 of the Code of Civil Procedure and the said suit has been held to be non maintainable by both the courts below and hence dismissed. 2. The substantial question of law which arises for determination is :– “Whether the learned court below committed an illegality in holding that the suit filed by the appellant under order 21 rule 63 of the Code of Civil Procedure was not maintainable, although he filed claim petition in terms of Patna High Court (Amendment) Act under order 21 rule 58 of the Code of Civil Procedure in the year 1974 i.e prior to the coming into force the Code of Civil Procedure (Amendment) Act 104 of 1976." 3. The suit out which this appeal arises was filed in the following circumstances :– The respondent no. 1, in this appeal, Amrik Singh instituted Title (Eviction) suit no. 770 of 1965 against Rameshwar Lal Sharma, respondent no. 2. The suit was decreed in 1966. Title appeal no. 83 of 1967 was filed by Rameshwar Lal Sharma, which was also dismissed and second appeal no. 96 of 1972 filed by the said respondent was also dismissed by this Court. Respondent no. 1 had filed execution case no. 55 of 1976 for executing decree in Title (eviction) Suit no. 770 of 1965. On 16.7.1974 an application under order 21 Rule 58 of the Code of Civil Procedure was filed by most. Sundari Devi which was registered as Misc. Case no. 17 of 1974. Most Sundari Devi was the mother of Rameshwar Lal Sharma (respondent no.2) The aforementioned misc. Case was dismissed on 16.1.1988. On 14.3.1988 Sundari Devi filed suit under order 21 rule 63 of Code of Civil Procedure Out of this appeal arises. The Suit was dismissed in limine on the ground that the suit was not maintainable and the decision of the trial court was affirmed by the appellate court hence this second appeal. Respondent no. 1 in this appeal has filed an application under section 151 of the Code of Civil Procedure praying that the appeal be dismissed as not maintainable. It has been stated in the said petition that Rameshwar Lal Sharma respondent no. Respondent no. 1 in this appeal has filed an application under section 151 of the Code of Civil Procedure praying that the appeal be dismissed as not maintainable. It has been stated in the said petition that Rameshwar Lal Sharma respondent no. 2 having lost the eviction suit upto this court got Title Suit no.78 of 1973 instituted by his mother Sundari Devi in which the following reliefs have been claimed :– I. The decree obtained by the defendant no. 1 in the title suit no. 770 of 1965 of the Court of Munsif, Hazaribagh is fraudulent, collusive, void and without jurisdiction and is not binding or enforceable against the plaintiff. II. A decree be passed to establish that the suit properties including the house set-out in details in Schedule 'A' to the plaint belonging to the plaintiff no. 1 as a Raiyat and is in her actual physical possession and no other plaintiff and defendant have any right in it. III. A decree for permanent injunction be passed restraining the defendants from taking delivery of the house in Schedule A property and defendant no. 1 to 8 from the otherwise interfering with her possession. 4. In the above mentioned suit respondent Amrik Singh has been impleaded as defendant no. 9. Sundari Devi filed an application in her suit from restraining this respondent from executing the decree in the eviction suit. Injunction prayer was refused by the trial court and the appeal was also dismissed. Then she filed an application under order 21 rule 58 of the Code of Civil Procedure in Execution case no. 55 of 1967 which was dismissed on 16.1.1988. During the pendency of the Title suit no. 78 of 1973 and the Misc. case no. 17 of 1974, Sundari Devi died and her legal heirs and successors namely appellant herein were substituted. Title suit no. 78 of 1973 aforesaid is at the stage of the final hearing. The plaintiffs have closed their case and the defendants are leading evidence. Both the suit namely Title Suit no. 28 of 1988 out of which this appeal arises and title suit no. 78 of 1973 involved the same question of law and fact. It has been Submitted on behalf of the respondent that the present appeal be dismissed. 5. It has been contended that the title appeal no. 28 of 1988 was filed malafide because title suit no. 28 of 1988 out of which this appeal arises and title suit no. 78 of 1973 involved the same question of law and fact. It has been Submitted on behalf of the respondent that the present appeal be dismissed. 5. It has been contended that the title appeal no. 28 of 1988 was filed malafide because title suit no. 78 of 1973 for the same relief was pending and nearing conclusion. 6. The court below have held that the suit under order 21 rule 63 of the Code of Civil Procedure was not maintainable since the said provision stands repealed by virtue of section-72 of the Code of Civil Procedure (Amendment) Act 1976. It has been contended by Mr. B.K. Dey for the appellant that the view of the trial court and the appellate court is clearly erroneous, since the suit was instituted prior to amendment Act, the appellant had vested right to avail remedies under the repealed provisions even after it was repealed in 1976. 7. Mr. B.K. Day learned counsel for the appellants is perfectly correct in his submission that the suit is maintainable. This very question was considered in Syndicate Bank, New Delhi Vs. M/s Rallies India Ltd. New Delhi, A.I.R. 1979 Delhi 40. In the aforementioned case an order of attachment was passed on February 21, 1974 and was duly effected. The claim under order 21 rule 58 of the Code of Civil Procedure filed on March 18, 1974. This objection was decided by order dated September 14, 1977, certain provisions of the Code of Civil Procedure 1908 have been amended by the Code of the Civil Procedure (Amendment) Act, 104 of 1976 which came into force on February 1, 1977. Before the amendment aforementioned the provisions regarding investigation of claims and objections vis-a-vis properties attached in execution of decree were contained Rs. 58 to 63 of order 21 of the Code. On determination of the claim or objection preferred either under rule 58 or rule 62 of order 21 of the Code of Civil Procedure the party against whom an order was made on such determination had a right to institute a suit to establish his claim to or right in the property in suit Under the amended provisions of the Code the right to file a suit has been taken away. Instead of that an appeal is provided from the order determining the claim or objection. The question, therefore, arose where the provisions of Sub-rule (4) and (5) of Rule 58, order 21 of the Code are retrospective in operation so as to bar suit under the amendment order 21 Rule 63 of the Code. 8. Prakash Narain, J is speaking for the division bench made the following observation :– “The relevant amendment in the Code came into force on Feb. 1, 1977. The question that arises for determination is whether the provisions of sub-rules(4) and (5) of R. 58 of 0.21 of the Code are retrospective in operation so as to bar the filing of a suit under the unanended 0.21 R. 63 of the Code. In other words whether sub-rules (2) (4) and (5) of the amended R. 58 of 0.21 of the Code are restrospective in character in the facts and circumstances of the present case. It is a fundamental rule or law that no astute shall be construed to have retrospective operation unless such a construct on appears very clearly in the terms of the Act or arises by necessary and distinct implication. Wright, J in re, Athlumney, (1898)2 OB 547(551) enunciated the rule regarding restrospectivity most succinctly in the following words :– Perhaps no rule of construction is more firmly established than this, that a retrospective operation is not to be given to a stature so as to impair existing right or obligation, otherwise then as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. From the above observations another well established cannot of interpretation also emerges. That cannot is that a stature is not to be construed to have a greater restrospective operation than its language renders necessary” 9. It is now well settled by the decision of the Supreme Court in Garikapati Veeraya Vs. From the above observations another well established cannot of interpretation also emerges. That cannot is that a stature is not to be construed to have a greater restrospective operation than its language renders necessary” 9. It is now well settled by the decision of the Supreme Court in Garikapati Veeraya Vs. N. Subbiah Choudhry and others In A.I.R 1957 (S.C.) 540 that unless the provision or the new enactment clearly say so or it can be found out as matter of necessary intendment, the new provisions can not affect accured rights and tight to file a suit or an appeal is just as much a vested right as any other. 10. In the present case the application under order 21 rule 58 of the Code of Civil Procedure was filed on 16.7.1974 i.e. before amendment Act came into force in February 1, 1977. Therefore, unless there was clear legislation to that effect a right accured to the parties to the lis to file a suit under unamended order 21 rule 63 of the Code of Civil Procedure. There can be no doubt even according to the intendment of the legislation section 97 of the Act 104 of 1976 makes it amply clear that as far as the vested right pertaining to claim under order 21 rule 58 of the Code of Civil Procedure which were prevailing prior to Feb. 1, 1977 the old law would hold the field. Without prejudice to the General Clauses Act. 1897, clause(q) of Sub-section(2) of section 97 of the Act 104 of 1976 in terms says : (q) The provisions of Rs. 31, 32 48 A 57 to 59, 90 and 97 to 103 of O. XXI of the First Schedule as amended or as the case may be, substituted, or inserted by S. 72 of this Act shall not apply to or affect...... (i) any attachment subsisting immediately before the commencement of the Said S. 72, or (ii) any suit instituted before such commencement under R. 63 aforesaid to establish right to attached property or under R. 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” The ratio in syndicate Bank (Supra) was relied upon by M.P. High Court in Bhanwar lal Jain Vs. “and every such attachment, suit or proceeding shall be continued as if the said section 72 had not come into force” The ratio in syndicate Bank (Supra) was relied upon by M.P. High Court in Bhanwar lal Jain Vs. Bherula and other A.I.R. 1982 M.P. 154. 11. The view of the court below that the suit was not maintainable is patently erroneous and cannot be sustained. 12. However, in the facts and circumstances of the case I am not inclined to remand the matter to the original court for trial in view of the fact title suit no. 8 of 1973 is likely to be disposed of shortly. The appellants cannot be permitted to pursue two remedies simultaneously. The suit out of which this appeal arises also docs not appear to be bonafide. The title suit was filed earlier. In the facts and circumstances of the case, this appeal is dismissed but without costs. Appeal dismissed