R. K. MAHAJAN, J. ( 1 ) THE First Appeal from Order aforesaid has been filed against the judgment and decree dated 24-1-1983 passed by Sri Awadh Behari Shukla, the XIIth additional District Judge, Agra allowing Civil appeal No. 73 of 1982, Bhikam Singh v. Surajmukhi and others and sent back the case to the trial Court with a direction to restore the suit to its original number and after affording opportunity to the parties to lead evidence, to decide the suit by giving its findings on all issues on merits setting aside the order dated 13. 5. 1981 by XVIIIth Munsif, agra in Suit No. 107 of 1978 holding that the suit is barred by the provision of Rule 58 of order XXI CPC on finding of issue No. 6 and rejected the plaintiff of the plaintiff under order VII, Rule 11 CPC. ( 2 ) SECOND Appeal No. 1830 of 1985, aforesaid has been filed against the judgment and decree dated 9-9-1985 passed by Sri o. N. Gupta, IInd Additional Civil Judge, Agra allowing Misc. Appeal No. 34 of 1974 arising out of Execution Case No. 62 of 1976 in original Suit No. 357 of 1974 dismissing the objections under Order XXI, Rule 58 CPC and setting aside the order dated 23-12-1978 allowing the objection filed by Smt. Suraj mukhi under Order XXI, Rules 58 and 64 cpc by Sri Subhash Chandra, Munsif, fatehabad at Agra. ( 3 ) SINCE the property involved in both the abovementioned appeals is the same and the controversy involved in both the cases is more or less the same, I would like to dispose of both the appeals together by a common order. The First Appeal From Order No. 218 of 1983 is the leading case. ( 4 ) THE brief facts of the case are these original Suit No. 357 of 1974 against one mulla was filed in the Court of Munsif, fatehabad, Agra which was decreed on 2. 11. 1976 for Rs. 3, 450 with pendentelite and future interest at the rate of 6% per annum. It appears that before passing of the decree, the plaintiff got the house of Mulla, defendant No. 2 in the suit attached on 27. 8. 1974. On 26. 11. 11. 1976 for Rs. 3, 450 with pendentelite and future interest at the rate of 6% per annum. It appears that before passing of the decree, the plaintiff got the house of Mulla, defendant No. 2 in the suit attached on 27. 8. 1974. On 26. 11. 1976, the plaintiff had filed an application in the Court of Munsif, fatehabad that the decretal amount be realised by auction of the attached house of defendant-mulla. However, Mulla had not filed any objection but defendant No. 1 has filed objection on 26. 5. 1977 under Order XXI, Rule 58 CPC. The said objection was lying pending at the time filing of suit. Mulla had sold the property in dispute in favour of plaintiff bhikam Singh on 22. 12. 1975. It was further alleged by the plaintiff that when he was aware of the sale which was based on fraud and forgery. The defendant No. 2 also denied to refund the money of the sale deed to defendant No. 1. Despite this fact, since the house in dispute was already attached, no sale deed could be executed and the alleged sale was made to avoid the payment of the decretal amount. The plaintiff filed Suit No. 107 of 1978 giving rising to the instant first appeal from order. ( 5 ) THE suit was contested by the defendant no. 1 and a plea was raised that the suit was barred by Order XXI, Rule 58 CPC. The trial Court rejected the plaint as having barred by Order XXI, Rule 58 CPC while the Appellate court allowed the appeal sending the case back to the trial Court for decision against which order the instant first appeal from order has been filed. ( 6 ) THE facts giving rise to the second appeal are these. It appears that in order to satisfy the decree obtained by Bhikam Singh-decree-holder in Suit No. 357 of 1974 against mulla-judgment-debtor, the decree-holder filed an application for execution of the decree. The same was registered as Ex. Case No. 62 of 1976. In the said execution case, Smt. Suraj Mukhi filed an objection under Order xxi, Rules 58 and 64, CPC, the third party. The same was registered as Ex. Case No. 62 of 1976. In the said execution case, Smt. Suraj Mukhi filed an objection under Order xxi, Rules 58 and 64, CPC, the third party. The case of the objector was that the attached house alongwith the Chabutra belongs to her and the decree-holder in a decree against the judgment-debtor Mulla wants to satisfy his decree by way of sale of the said house. According to the objector, she purchased the house in dispute on 22. 12. 1975 for Rs. 2, 000 and since then she was in possession. It was further alleged by the objector that the judgment-debtor or the decree-holder has no right, title or interest over the house in dispute after the sale deed in her favour. The decree-holder in his reply to the said objection stated that the objector had fraudulently and illegally got the sale deed of the house in question executed in her favour. It was further alleged by the decree-holder that the judgment-debtor was not legally entitled to execute the sale deed of the house in dispute in favour of the objector during the pendency of the suit specifically when the said house was attached before judgment. It was further alleged that the objector fully knew about the attachment of the house in dispute before judgment. Therefore, the sale deed was illegal. Since the house in dispute was under attachment, on the date of sale deed, hence the sale deed executed in favour of the objector by the J. D. is illegal, void and ineffective. Both the parties lead oral evidence and also filed affidavits in support of their respective contentions. ( 7 ) THE trial Court after hearing both the parties, allowed the objection under Order xxi, Rules 58 and 64 CPC holding that the decree-holder is not entitled to satisfy his decree by way of sale of the house in question. Against the order allowing the objection, the decree-holder filed an appeal which was registered as Misc. Appeal No. 34 of 1979. The Lower Appellate Court allowed the appeal after setting aside the order of the trial Court meaning thereby that the objection under Order XXI. Rule 58 CPC was rejected. Against the said order allowing the appeal, the second appeal has been filed. ( 8 ) I have heard the learned Counsel for the parties at length and perused the record. The Lower Appellate Court allowed the appeal after setting aside the order of the trial Court meaning thereby that the objection under Order XXI. Rule 58 CPC was rejected. Against the said order allowing the appeal, the second appeal has been filed. ( 8 ) I have heard the learned Counsel for the parties at length and perused the record. ( 9 ) SRI Beni Prasad, learned Counsel for the appellant, has submitted that the order for rejection of plaint is valid and required no interference. According to him, no suit lies. The learned Counsel for the appellant, whose suit was dismissed contended that the suit for cancellation was maintainable. I am of the considered view that the only the remedy available to Smt. Surya Mukhi, who purchased the property in dispute in 1975, and which is the subject-matter of the sale, is to file objection under Order XXI, Rule 58 CPC and subsequent provisions and not by way of a suit. I would like to quote Order XXI, Rule 58 cpc with the advantage:-"58. Adjudication of claims to, or objection to attachment of property.- (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, the title or interest in the propeaty attadnad)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, the title or interest in the propeaty attadnad)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 questions 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 attachment subject to any mortgage, charge or other interest in favour of any person; 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 to sub-rule (1), refuses 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, and order so refusing to entertain the claim or objection shall be conclusive. " ( 10 ) IT may be pointed out that the \intention of the legislature is whether the property is liable to be attached, is to be decided under Order XXI, Rule 58 of the code of Civil Procedure. The emphasis is made by legislature that such property is not liable to such attachment. Obviously, it can be said definately that any person can lay claim that he is owner of the property and the property is not liable to be attached the under Order XXI, Rule 58, the objection has to be decided by the Executing Court. In this case the third partys right has not been intervened after the confirmation of the sale of property. In this case the third partys right has not been intervened after the confirmation of the sale of property. Even the legislature has provided the remedy for setting aside the sale under Order XXI, Rule 89 CPC but the same condition i. e. on deposit of the amount and order XXI, Rule 90 CPC, the sale can be set aside on the ground of irregularity or fraud. The legislature has made a provision under Order XXI, Rule 92 CPC which deals the sale when to become absolute or it to be set aside. It has safeguarded the interest of a person who filed the objection. The attachment of such property and sale shall not be confirmed until the disposal of such claim or objection. Order XXI, Rule 92 CPC is quoted with an advantage :"92. Sale when to become absolute or be set-aside.- (1) Where no application is made under Rule 89, Rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and, thereupon the sale shall become absolute : provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. (2) xx xx xx (3) xx xx xx (4) Where a third party challenges the judgment-debtors title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be the necessary parties to the suit. " this has to be read with Order XXI, Rule 58 cpc in which emphasis has been laid down when the property is liable to be attached. We can also so infer from Order XXI, Rule 92 (4)cpc as quoted above. Thus, the suit will lie only by third party against auction purchaser so the question of interest or right in a property and whether it is liable to the attachment, it is to be decided by the Executive court. In this case, the learned trial Court was of the view that the suit is barred while learned lower Appellate Court was of the view that the suit can lie. There was conflict regarding the interpretation of Order XXI, Rule 58 cpc. In this case, the learned trial Court was of the view that the suit is barred while learned lower Appellate Court was of the view that the suit can lie. There was conflict regarding the interpretation of Order XXI, Rule 58 cpc. ( 11 ) I would like to quote Order XXI, Rule 55 CPC with an advantage :"55. Remoual of attachment after satisfaction of decree.- Where: - (a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court; or (b) satisfaction of the decree is other wise made through the Court or certified to the Court; or (c) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and. in the case of immovable property, the withdrawal shall, if the judgment-debtor or desires, he proclaimed this expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule. " ( 12 ) THE argument of the learned Counsel, who had filed the suit, proceeds that after the dismissal of the suit, the attachment was vacated. It appears from the record that proceeding under Order XXL Rule 66 CPC was started i. e. proclamation of sales by public auction and sale be effected. ( 13 ) THE suit for cancellation was filed in 1978, much after the inforcement of new code of Civil Procedure which came into play in 1972. So in my considered view, the suit is barred and the objector can still raise objection before the Executing Court whether the property is liable to be attached or not and sale thereafter. The property was again attached on 25. 5. 1977 and thereafter the notice was issued. It is obvious that the title can be decided and validity and genuineness of the sale can be gone into. ( 14 ) IN the result, the first appeal from order is allowed and the impugned order is set aside while the second appeal is dismissed. However, the objector Smt. Suraj Mukhi has liberty to file objection before the Executing court. First Appeal From Order allowed. Second appeal dismissed. .