Ramendra Mohan Datta, J.
1. This appeal arises from the order dated Aug, 26, 1980, passed by Mrs. Khastagir, J. in an application for an order for vacating or modifying or varying the order of attachment dated Jan. 22, 1975. The application was apparently made under the provisions of Order 21. Rule 58 of the Civil P. C, as amended in 1976 but in the cause title it has been described as an application pro interesse suo or in the nature thereof.
2. There is no judgment in the matter but the learned Judge ordered as follows:
'Upon reading an application of Commissioner of payments (Coking Coal) (hereinafter referred to as the said applicant) pursuant to a notice of motion dated the first day of July last and upon hearing the Advocates for the parties appearing herein.
It is ordered that the application made in this suit be and the same is hereby dismissed. And it is further ordered that the said applicant do pay to the plaintiff/respondents their costs of and incidental to this application to be taxed by the Taxing Officer of this court, And it is further ordered that the parties appearing in this suit be at liberty to apply on proper materials'.
3. The provisions of Order 21, Rule 58 relate to the adjudication of claim when an attachment has been levied on the property of the person concerned in an application in execution of the decree, The amendment of the Code has provided that such adjudication would be made in the application itself and the matter would be finally disposed of by making orders as provided thereunder and such orders so passed would have the character as if it were a decree. It is only when the matter is disposed of under the proviso to Sub-rule (1) thereof, the provisions of Sub-rule (5) would be attracted and under such provision, the party concerned against whom such order, refusing to entertain his application would be passed, would be at liberty to file a suit and subject to the result of such suit, the order refusing to entertain such application, would be conclusive. In the present case there is no indication from the order itself that the learned Judge has refused to entertain the application on the ground as mentioned in proviso (b) to Sub-rule (i) of Rule 58. Proviso (b) also requires some determination inasmuch as the court has to consider therein that the claim or objection was either designedly or unnecessarily delayed and on that basis the court would make an order refusing to entertain the application. That is not the case here as would appear from the last sentence of the order where it has been provided that the parties appearing in the said suit be at liberty to apply on proper materials. If the court had been satisfied that it was a case of delay which was caused designedly or unnecessarily, then the court would not have given them an opportunity to make further application on proper materials. The court under such circumstances should have indicated its mind that on the basis of the proviso the objection was refused to be entertained and as such the same was dismissed. That, not having been made, in our opinion, Order 21, Rule 58, Sub-rule (5) could have no application and, accordingly, the order passed herein must have been so passed under Order 21, Rule 58, Sub-rule (3) (d). The position, therefore, is that the order so passed under Sub-rule (3) (d) would have the effect as if it were a decree under Sub-rule (4) and the appeal would He from such order of dismissal as a matter of course.
4. On that basis we decide that the appeal is maintainable and we reject the argument put forward by Mr. Mukherjee that no appeal lies because of the provisions of Order 21, Rule 58, Sub-rule (5) read with the proviso (b) to' Sub-rule (l) thereto. With this observation, we proceed to consider the merits of this appeal.
5. This is a case where an attachment order was passed on, January 22,1975, wherein it was inter, alia orderedthat the
'sum of Rs. 2,03,145.06 paise only be realised by attachment of the sum of Rs. 56,500/- being the amount to be paid to the defendant under Section 10 of the Coking Coal Mines Nationalisation Act, 1972 in pro tanto satisfaction thereof. And it is further ordered that the said attachment shall be levied on the compensation money if any, which has become payable and still payable to the defendant under the Coking Coal Mines Nationalisation Act, 1972. And it is further ordered that the plaintiffs decree--holder shall be at liberty to proceed with the realisation of their claim before the Commissioner for Payments appointed under the said Act. And it is further ordered that the costs of arid incidental to this application to be added to the claim of the plaintiffs-decree-holder. And it is further ordered that all parties concerned do act on a copy of minutes of this order signed by an officer of this Court being produced before them.'
6. The said attachment order, however, was not sought to be further executed until Nov. 23. 1977 when the respondents preferred their claim along with a certified copy of the order of attachment. Thereafter the appellant herein made the application before the court below on June 23, 1980, inter alia for vaeating and/or modifying and/or varying the order of attachment. The matter was heard and decided on Aug. 26, 1980 by the learned Judge of the court below and thereafter on June 11, 1981 this appeal was preferred.
7. It appears from the order itself that the learned Judge was not satisfied as to the particulars which have been furnished in the petition of the appellant, in paragraph 2 of the petition, the appellant, inter alia, stated that '.........your petitioner has received Rs. 56,500/-only for disbursement on account of acquisition of the said coal 'mine. As against Rs. 56,500/- available for disbursement, your petitioner has received claims totalling over Rs. 9,11,000 including a claim of Rs. 2,03,145.06 paise from the plaintiffs decree-holder, Out of the said amount of Rs. 9,11,000/- the priority debts will amount to more than Rs. 90,000/- your petitioner states that even priority debts cannot be paid in full with the available amount of Rupees 56,500/-,
There will remain nothing in hand to pay any unsecured creditors.'
8. Admittedly the decree-holders, the respondents herein are not secured creditors and their claim would be postponed until the secured or preferential creditors are paid off. If that be the position, the rest of the particulars that would be required for disposal of this matter would be the subject-matter of an order for discovery and inspection and thereafter the same would be considered after evidence would be led in respect thereof in adjudicating the claim of the respondents-decree-holders. The court cannot dismiss the application without such adjudication on the ground that the detailed particulars have not been furnished in the petition itself. It is not a case where no particulars at all had been furnished. The particulars broadly have been furnished before the court and the rest would be the subject matter of further and better particulars and discovery in the trial itself. The learned Judge also should have considered that the said averments, made in paragraph 2 of the appellants petition, had not been denied in the Affidavit-in-Opposition, filed by Gopal Krishna Basu, affirmed by him on August 4, 1980.
9. That being the position, the appeal must be and is hereby allowed. The order of the court below is set aside but since the matter has not been adjudicated upon, we remand the case to the court below and direct that the same be adjudicated upon in accordance with the provisions of Order 21, Rule 58, read with Order 41, Rule 23 of the Civil P. C. The matter be disposed of within a fortnight after reopening of the High Court after the long vacation. Let a copy of the judgment and order passed herein be sent to the appropriate court which passed the order under appeal.
10. Each party to pay and bear its own costs.
C.K. Banerji, J.
11. I agree.