The main legal point established is that when a party objects to the attachment of properties in execution of a decree under O. XXI R.58, claiming the property as part of a trust, the objection falls outside the purview of S.47 and should be dealt with under O. XXI, R.58.

1. This is an appeal filed by the decree holder from an order, dismissing his application for execution of the decree in O. S.125 of 1952 of the Palghat Sub Court and raising the attachment of the properties scheduled to that application, on the objection of the 2nd respondent in this appeal. The 2nd respondent in CRP. 256 of 1961 had filed a petition under O. XXI R.58 objecting to the attachment of the properties. That petition was tried, and heard along with the objection petition filed by the 2nd respondent in this appeal and a common order has been passed by the court below.

2. A preliminary objection is raised by counsel for the respondents to the effect that no appeal lies from the order of the lower court. In order to appreciate the nature of the preliminary objection, it is necessary to state briefly the facts.

3. The appellant obtained a decree for money against respondents 1&2. It was a decree passed against them severally and in execution of this decree, the properties alleged to belong to the respondents were attached.

4. The 1st respondent was ex parte. The 2nd respondent contended that the properties attached were acquired by Ramaswamy Iyer, the father of the 1st respondent with his own private funds and that the same belonged absolutely to him; that he executed two trust deeds, Exts. B6 and B7, settling * the properties in favour of his grandchildren viz., the children of respondents 1 and 2; and that under the provisions of those trust deeds, the trusts were to last until the attainment of majority of the youngest child of the respondents. She also contended that as the properties belonged to the trust they were not liable to be attached in execution of the decree obtained against the 1st and 2nd respondents in their individual capacities.

5. The court below came to the conclusion that the properties belonged to Ramaswamy Iyer, the father of the 1st respondent, that he executed two trust deeds, that he was himself the trustee for a period of one year from the date of the creation of the trusts, that thereafter the 1st and 2nd respondents were functioning as trustees, that the trust deeds were valid and came into effect, that the beneficiaries under the trusts were the children of the respondents and that the properties were not liable to be attached in execution of the decree against the respondents.

6. Now the preliminary objection is that the objection preferred by the 2nd respondent was an objection by her in her capacity as a joint trustee on behalf of the trust and therefore she was really in the position of a third party to the suit objecting to the attachment of the properties in execution of a decree, that in law, the objection can be considered to be only one under O. XXI R.58 of the Civil Procedure Code, and that no appeal would lie to this court. If, in law, the objection can be considered to be only one under O. XXI R.58, then no appeal would lie against an order passed on that objection.

7. We are of opinion that the preliminary objection is sound and ought to prevail. The objection preferred by the 2nd respondent was really one under O. XXI R.58 because the objection was preferred by her in her capacity as a joint trustee on behalf of the trusts. S.47 of the Civil Procedure Code says that all questions arising between the parties to the suit in which the decree was passed or their representatives shall be decided by an application in execution and not by a suit. Here, the 2nd respondent, though a party to the suit, was objecting to the attachment of the properties not in the capacity in which she was impleaded in the suit, but in a different capacity namely as one of the trustees of the properties. Therefore the objection preferred was really preferred by her in a capacity in which the decree did not bind her.

8. In ILR. 42 Calcutta 440, Mukherjee, J., had to consider this question and he made the following observation at page 446:

"This view is supported by the decision of the Full Bench in K