Judgment :- 1. This appeal has been preferred by the petitioner in E.A.No.490 of 1985 in E.P.No.49 of 1985 in O.S.No.73 of 1983 in the file of subordinate Judge, Erode, The said E.A.No.490 of 1985 was filed by the petitioner for raising attachment of his property made in E.P.No.49 of 1985 in O.S.No.73 of 1983. 2. The petitioner claimants case is that Messrs K.Somasundaram and K.Chidambaram who had 1/3 undivided share each in the petition mentioned property released their interest by a registered deed dated 23.7.1979 in favour of the petitioner after receiving valuable consideration. They ceased to have any interest in the petition mentioned property from and after 23.7,1979. the petitioner alone is the absolute owner of the entire petition property. In respect of three more release deeds, dispute arose between the petitioner and me second respondent. With a view to cause loss to the petitioner the second respondent created some promissory notes in the name of the first respondent and obtained a collusive decree in O.S.No.73 of 1983. In execution of the said collusive and fraudulent decree, the first respondent attached the petition property for selling it in E.P.No.49 of 1985 as if the second respondent somasundaram had interest in the petition property. The petitioner was not aware of the attachment and the execution proceedings, till 20.7.1985. the release deed executed by Chidambaram was challenged in I.P.No.46 of 1979 and it was dismissed. Since the property cannot be attached the petitioner filed the petition for filling the attachment. 3. A counter was filed by the first respondent wherein he has stated that the release deed challenged was created for the purpose of defeating and defrauding the creditors. There was no valuable consideration for the release deed. The property was worth Rs.40,000 and the consideration for the release deed is only Rs.5,000. Therefore, the first respondent has filed a suit for declaration that the release deed is not binding on the general body of the creditors. The suit O.S.No.1028 of 1981 is pending before the II Additional District Munsif, Erode. The petitioner is also a party to the said suit O.S.No.1028 of 1981. The decree obtained in O.S.No.73 of 1983 is a genious one. Therefore, the attachment need not be raised. 4. The learned Subordinate Judge appears to have closed the execution petition. The suit O.S.No.1028 of 1981 is pending before the II Additional District Munsif, Erode. The petitioner is also a party to the said suit O.S.No.1028 of 1981. The decree obtained in O.S.No.73 of 1983 is a genious one. Therefore, the attachment need not be raised. 4. The learned Subordinate Judge appears to have closed the execution petition. Since the execution petition was closed, learned Judge has also has passed on order in the claim petition stating that since the execution petition is closed, the petition also is closed. Aggrieved by the said order, the claimant has filed this appeal before this Court. 5. The main contention urged by the learned counsel for the petitioner is that once a claim petition is filed under 0.21, Rule 58 and Sec.151 of Code of Civil Procedure a duty is cast upon the court to go into the merits of the case and arrive at a finding as to whether the attachment should be continued or raised. It must be treated as an independent suit and it is not depending on the continuation of the execution petition. 6. In my view there is some force in the said contention. 0.21, Rule 58 of C.P.C. contemplates the adjudication of right, title and interest in the property attached the provisions contained in 0.21, Rule 58 of Code of Civil Procedure are very specific in this regard. It is set out below: ”(1) Where any claim is preferred to, 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) Where, before the claim is preferred or objection is made the property attached has already been sold, or (b) Where the court considers that the claim or objection was designedly or unnecessarily delayed. (2) 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. (2) 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. (3) Upon the determination of the question referred to in sub-rule (2), the court shall, in accordance with such determination, — ( a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachments subject to any mortgage charge or other interest in favour of any persons, or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the court, under the proviso is Sub-rule (1) refuse to entertain it, the party against whom such order is made, may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, an order to refusing to entertain the claim or objection shall be conclusive. A reading of the said section shows that as soon as a claim is preferred the court shall proceed to adjudicate upon the claim that is the scope of Sub-sec.(l), Sub-sec.(2) states that all 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. Sub-clause (2) is to the aforesaid effect. When we come to Sub-clause (3) we also find that upon the determination of the questions referred to in Sub-rule (2) the court shall, in accordance with such determination allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks it fit. Sub-clause (2) is to the aforesaid effect. When we come to Sub-clause (3) we also find that upon the determination of the questions referred to in Sub-rule (2) the court shall, in accordance with such determination allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks it fit. Sub-clause (4) states that an order passed as per clause (2) the orders made there on shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. 7. A thorough scrutiny of 0.21, Rule 58 of Code of Civil Procedure does not contemplate that the proceedings initiated under the said rule is dependant upon the continuity or continuation of the execution petition. It is also possible to hold or justice also will require that the petitioner in the execution petition can close it and have it reopened and whenever it is reopened, proceedings initiated under 0.21, Rule 58 of Code of Civil Procedure would be revived at the will and pleasure of the decree-holder. 8. This view is also supported from the provisions contained under 0.21, Rule 105 of Code of Civil Procedure. Explanation to Rule 105 is extracted below: “An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58.” It means that when the opposite party in the claim petition is absent he must be set ex parte. Similarly, when the applicant is absent, the application could be dismissed. 0.21, Rule 106 provides for setting aside orders passed ex parte. From the aforesaid provisions it is clear that the proceeding and it has to be decided like a suit. 9. If the execution petition was closed as it is normally done when the decree-holder namely the petitioner in the execution fails to appear or fails to take any steps, the execution petition could be closed. But in his absence the claim petition must be taken and the claim petition should be proceeded with ex parte in his absence that is the ex parte order should be passed allowing the claim petition. From the order dated 28.7.1987 it is seen that the second respondent K.Somasundaram judgment-debtor alone remained ex parte and the first respondents’ (decree-holders) counsel was heard. Therefrom I do not find any justification for closing the claim petition also. From the order dated 28.7.1987 it is seen that the second respondent K.Somasundaram judgment-debtor alone remained ex parte and the first respondents’ (decree-holders) counsel was heard. Therefrom I do not find any justification for closing the claim petition also. On this ground the order of the learned Judge is unsustainable. For the foregoing reasons, the appeal is allowed. Learned Subordinate Judge, Erode is directed to take up the claim petition on file and dispose of the same on merits within a period of six months from today. No orders as to costs.