C. Y. SOMAYAJULU, J. ( 1 ) FIRST respondent filed O. S. No. 903 of 1998 for recovery of money and got attached before judgment some property belonging to the second respondent in LA. No. 14141 of 1998. That attachment before judgment was made absolute on 18-12-1998. Subsequent thereto the suit was decreed. In execution of that decree, first respondent filed E. P. No. 238 of 1999 from sale of the property got attachment by him before judgment in LA. No. 14141 of 1998. Just before the date of sale appellant filed the E. A. under appeal, under Order 21, Rule 58 C. P. C. with a prayer to raise the attachment. The petition was dismissed in limine under Rule 58 (1) (b) of Order 21 CPC by the order under appeal. ( 2 ) DURING the pendency of the appeal sole appellant died and so his legal representatives were brought on record as appellants 2 to 4. ( 3 ) LEARNED Counsel for the appellants placing strong reliance on M Ramachandra Rao v. Papayya Sastry, 1973 (1) APLJ 243 , contends that the Court below was in error in dismissing the petition in limine even without giving an opportunity to show the reasons for the delay. The learned Counsel for first respondent relying on K. Venkatarayappa v. Ellen Industries, AIR 1985 AP 261 , contends that the Court below was right in dismissing the petition in limine, under proviso sub-rule (2) to Rule of Order 21 CPC and appellant cannot be said to be aggrieved, because he has a right under sub-rule (5) of Rule 58 of Order 21 CPC to file a suit and contended that in any event since sale was held, and the property was also delivered to the auction purchaser, the petition became infructuous. ( 4 ) NO doubt it is true that in Ramachandra Rao case (supra) it is held that Court cannot dismiss a petition on the ground of delay and that it is incumbent upon the Court to give an opportunity to the petitioner to explain the reason for delay. A reading of the said judgment, shows the order under revision in that case read "rejected as it is belated one" and that order was passed after several returns calling upon the petitioner to furnish the date of attachment. A reading of the said judgment, shows the order under revision in that case read "rejected as it is belated one" and that order was passed after several returns calling upon the petitioner to furnish the date of attachment. In this case an elaborate order was passed, after hearing the Counsel for appellant in the trial Court, as seen from the order under appeal. That apart the above, decision was rendered prior to 1976 amendment to CPC. Before 1976 amendment, the proviso to Rule 58 of Order 21 CPC read:"provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. " (Emphasis supplied) after 1976 amendment the proviso reads as under. "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; (b) Where the Court considers that the claim or objection was designedly or unnecessarily delayed. "the difference in the languages employed by 1976 amendment shows that prior to 1976 amendment, the embargo was on investigation being made by the Court when it felt that objection was designedly or unnecessarily delayed, whereas after that amendment in 1976, the embargo is on the Court entertaining the application at a belated stage. Therefore for the Court to take a decision whether it should investigate into the claim or not due to the delay, opportunity to a party to explain the delay may be necessary. After 1976 amendment no such opportunity need be given to explain the delay, because the Rule prohibits entertaining belated application by Court. This apart sub-rule (5) of Rule 58 of Order 21 CPC added by way of 1976 amendment, provides opportunity to the claimant, whose petition was dismissed under the proviso to sub-rule (1), to file a suit for establishing his right when the petition is dismissed on merits appeal is the remedy. ( 5 ) IT may be stated that while considering the object behind the proviso to Rule 58 of Order 21 CPC a Division Bench of Patna High Court in Sachida Prasad v. Girija Prasad, AIR 1980 Pat. ( 5 ) IT may be stated that while considering the object behind the proviso to Rule 58 of Order 21 CPC a Division Bench of Patna High Court in Sachida Prasad v. Girija Prasad, AIR 1980 Pat. 136 , held that the purpose of the proviso is to see that execution should not unnecessarily be encumbered or unduly delayed by allowing frivolous objections from unconcerned quarters and so when a claim is filed the Court has to look into the circumstances mentioned in the proviso and if the design of the objection is to delay execution it shall not investigate into the claim or objection. If the Court conducts an enquiry and dismisses the petition filed under Order 21, Rule 58 CPC, such order would be appeal able, and if the petition is summarily rejected under proviso to sub-rule (1) of Rule 58 of Order 21 CPC separate suit under sub-rule (5) of Rule 58 of Order 21 CPC is the remedy, it is also held so in K. Venkatarayappa case (supra) and T. Bhanukumari v. Sait Balwant Raj, 1979 (2) ALT 2 (NRC ). In this case since the petition was rejected in limine the remedy open to the appellant is to file a suit, but not an appeal, more so because elaborate reasons are given in the order under appeal for the Court corning to a conclusion that the petition is designedly delayed. ( 6 ) THEREFORE, I find no merits in this appeal and hence the same is dismissed. It is needless to mention that this dismissal does not bar the appellant from pursuing the remedy of filing a suit, open to him under sub-rule (1) or Rule 58 of Order 21 CPC. No costs.