The main legal point established in the judgment is the interpretation and application of attachment provisions under Order XXXVIII Rule 5 and Order XXI Rule 42 of the Code of Civil Procedure, leading to the determination of the maintainability of the suits under Order XXI Rule 63.

RAGHAVAN, J. :- The appellant in each of these three appeals against second appeals is a brother of the other appellants in the other appeals. The appeals arise out of three suits, in which the common plaintiff is the first respondent and the common first defendant now deceased, was the father of the appellants, each of whom being the second defendant in the respective suit. The suits were for setting aside claim orders and also for declaring three gift deeds, each in favour of each of the appellants, by their father as sham and nominal and were intended to defraud the creditors of the father. The trial court and the lower appellate court decreed the suits; and a learned Judge of this Court (Raman Nayar J. as he then was) confirmed the decree in second appeal. However, the learned Judge granted leave to appeal to a Division Bench and hence these appeals, each by the second defendant in each suit.

2. The second appellate decision is reported as Sakaria v. Joseph, 1965 Ker LT 341 : (AIR 1965 Ker 288).

3. We do not think it is necessary to state the facts in any detail. However, we shall just state the essential facts to bring out the questions to be decided by us.

4. In O. S. No. 103 of 1117 of the District Court of Alleppey, the High Court in appeal passed a preliminary decree directing the first defendant to account to the first respondent for the letter's share of the profits from some immovable properties. The High Court also directed the lower Court to pass a final decree after assessing the profits. The suit went back to the lower court; and pending the final decree proceedings, the first defendant executed the three impugned gift deeds and another gift deed in favour of his four sons, three of whom are the appellants, regarding the major portion of his properties. Immediately on knowing about these gift deeds, the first respondent filed an application under Order XXXVIII Rule 5 of the Code of Civil procedure for attaching the properties covered by the gift deeds. And an order of interim attachment was also passed by the court under Order XXXVIII Rule 5 (3).

The appellants then filed claim petitions; and the claim petitions, the petition for attachment and the final decree proceeding were all disposed of by the court on the same day. The court held that the attachment under Order XXXVIII Rule 5 was not proper (according to the court, the attachment should have been under O. XXI Rule 42) and that the gifts were sham transactions intended to defraud the creditors of the first defendant. In the view the court took that the attachment was bad, the court allowed the claim petitions and raised the attachment. The first respondent then filed the three suits, which have given rise to these appeals, as representative suits representing all the creditors of the first defendant; and the appellants objected that the suits were not maintainable. This objection has been overruled by all the lower courts; and the question we have to consider is whether the said concurrent decision of the lower courts is liable to be disturbed.

5. The provision of law under which the suits were brought is not mentioned in the plaints. But, it is sought to be justified either under Order XXI Rule 63 of the Code of Civil Procedure or under Section 53 of the Transfer of Property Act or under Section 42 of the Specific Relief Act. If the first respondent succeeds in establishing that any of the aforesaid three provisions applied, the decision of the lower courts has to be upheld. In two of the cases, an additional objection is also taken by the appellants, viz., that Section 47 of the Code of Civil Procedure is a bar to the suits.

6. We shall first take up the question whether the suits fall squarely under Order XXI Rule 63 of the Code of Civil Procedure. The objection of the appellants to this is that the attachment effected by the first respondent pending the final decree proceeding (after the passing of the preliminary decree) should have been under Ord