JUDGMENT D.K. Seth, J.
1. Opposite party No. 8 Smt. Alimun Nisha had filed a suit being Original Suit No. 1208 of 1991 in the court of Munslf. Gorakhpur, against one Smt. Soghra Begum. The said suit was decreed on 19th April, 1992. Against that, an appeal was preferred by Smt. Soghra Begum, which was dismissed on 28th September. 1993. The Second Appeal there out was dismissed on 9th January. 1997. The decree passed in Original Suit No. 1208 of 1991 was put into execution in Execution Case No. 2 of 1998. The petitioner, who was not a party to the Original Suit No. 1208 of 1991. had filed an application in the said execution proceeding praying for stay of execution as against her. The petitioner is defendant No. 1 in Original Suit No. 1777 of 1990 filed by one Gulam Jeelanl in the court of Munsif Sahar, Gorakhpur. The opposite party No. 8 Smt. Alimun Nisha is not a party to the said suit. The application filed by the petitioner, as contended by Mr. Rafiuddin Ansari, Advocate, was purported to have been made under Order XXI, Rule 58 of the Code ol Civil Procedure. Mr. Ansari contended that the petitioner was not a party to the Original Suit No. 1208 of 1991. Therefore, the decree passed thereon does not bind her and she cannot be evicted in execution of the decree through execution proceedings in Execution Case No. 2 of 1998. Therefore, the execution of the said decree should be stayed.
According to him the learned Civil Judge (Junior Division) IIIrd Court in Execution Case No. 2 of 1998 passed an order on 9th March. 1999 rejecting the said application. The petitioner had preferred a Revision No. 120 of 1999. By an order dated 6th July.
1999 passed by the learned District Judge. Gorakhpur. the same was dismissed. It is these two orders which have been challenged in this writ petition.
2. Mr. N. A. Khan, learned counsel for Opposite Party No. 8 who had lodged a caveat contends that there was no order of attachment passed in the Execution Case No. 2 of 1998. Therefore, the Order XXI, Rule 58 of the C.P.C. cannot be resorted to by the petitioner.
3. He contends further that the petitioner is. admittedly, not a party to Original Suit No. 1208 of 1991. Therefore, she cannot oppose the execution either under Section 47 of the C.P.C. or in any other manner. Her application, therefore, could neither be treated as one under Order XXI, Rule 58 nor under Section 47 of the C.P.C. Therefore, the application was rightly rejected by the learned trial court and the order of the learned trial court was rightly affirmed by the learned revisional court. The application should, therefore, be dismissed.
4. I have heard both the learned counsel at length.
5. Admittedly, the petitioner was not a party to the Original Suit No. 1208 of 1991. Whether she is bound by the decree is a question to be gone into in the execution itself, which question cannot be dealt now. But, admittedly, she is not named as Judgment-debtor in the execution proceedings. At the same time, Opposite party No. 8 Smt. Alimun Nisha is not a party to the Original Suit No. 1777 of 1990 and any order passed therein cannot bind Smt. Alimun Nisha, the decree-holder. Even if assuming, but not admitting, that the contention of Mr. Ansari is correct that the suit property is the same, still then the execution in Execution Case No. 2 of 98 cannot be affected by reason of the pendency of the said suit. The execution could be opposed by the judgment-debtor under Section 47 of the Code. The judgment-debtor has not come to oppose the same so far as this petition is concerned.
6. In the absence of any order of attachment. Order XXI, Rule 58 of the Code has no manner of application. Rule 58, Order XXI provides for objection to the order of attachment made In pursuance of an execution only. If there is an attachment then only Rule 58 comes into play. Every right opposing such attachment can be adjudicated under sub-rule (2) of Rule 58 provided there is an order of attachment.
7. In the present case, there being no attachment, the application which was purported to be made under Order XXI. Rule 58 is wholly misconceived and cannot be maintained.
8. The petitioner even if a third party as contended by Mr. Ansari that she is not bound by the decree or with the property sought to be executed is different from the property held by the petitioner, in that event such questions cannot be gone into until the execution of the decree is resisted and an application under Order XXI, Rule 97 Is filed by the plaintiff decree-holder. Only If such an application is filed, then the petitioner may resist the decree and in that event, such dispute may be adjudicated upon in a proceeding under Order XXI, Rule 101 of the C.P.C. Mr. N. A. Khan contends that uptill now the stage for making application Under Order XXI, Rule 97 has not arisen. Therefore, the said application cannot be treated as an objection to an application under Order XXI, Rule 97 for being decided under Rule 101. Thus the application seeking to resist cannot be maintained by the petitioner, who is not, admittedly, a judgment-deb tor as is apparent on the basis of the materials before this Court at this stage, particularly in view of the fact that she has not been named as Judgment-debtor in the execution proceedings.
9. Therefore, though the application made by the petitioner has been dismissed on different grounds in view of the fact that the application cannot be maintained by the petitioner at this stage, the order dated 9th March, 1999 passed by the learned Civil Judge [Junior Division) IIIrd. Gorakhpur in Execution Case No. 2 of 1998, since been affirmed by the order dated 6th July. 1998 passed by the learned District Judge, Gorakhpur in Civil Revision No. 120 of 1999 cannot be Interfered with and as such I am not Inclined to interefere with the same.
10. Mr. Ansari had relied on a decision in the case of Avinash Chandra. v. Mohan Lal, AIR 1994, P&H 391, in support of his contention to secure third party interest. But the said decision deals with regard to an application under Order XXI, Rule 58, in which it was held that rights of the third party are also to be adjudicated under the said Rule, not by a separate suit but by means of an application in the said provision.
11. In the present case since Order XXI, Rule 58 cannot be attracted, therefore, the said decision cannot apply.
12. The writ petition, therefore, fails and is accordingly dismissed. However, there will be no order as to costs. However, this order will not prevent the petitioner to seek appropriate remedy at appropriate stage.