The main legal point established in the judgment is the revival of the attachment before judgment and the effect of the claim suit on the attachment.

Somayya, J.

1. The decree-holder appeals against the order of the District Judge of Kistna which upheld the order of the District Munsiff of Masulipatam in E.A. No. 1470 of 1938 in O.S. No. 211 of 1933. E.A. No. 1470 of 1938, was filed by some of the defendants in the action asking that their shares in the property sought to be proceeded against in execution of the decree in O.S. No. 211 of 1933 should be exonerated. This petition was allowed by the trial Court and that order was?, upheld on appeal. The suit (O.S. No. 211 of 1933) was filed by the appellant for recovery of a sum of money. The first defendant was the father and the other, defendants were the sons. The suit itself was upon a promissory note dated 9th April, 1930, executed by the first defendant in favour of the plaintiffs transferor; one Chanduru Venkataratnam. An application under Order 38, Rule 5, Civil Procedure Code, was also filed seeking attachment before judgment of certain properties belonging to the family of the first defendant and his sons. Notice and conditional attachment were ordered on this application and the properties were attached. Subsequently owing to certain difficulties in service of notice on the sons, they were exonerated and a decree was obtained against the first defendant, the father. Before this stage was reached, the first defendants wife filed a claim petition objecting to the attachment of the property on the ground that the property belonged to her. This claim was allowed and the attachment was raised by order dated 15th August, 1933. The application for attachment before judgment came on for further orders on 9th September, 1933. On that day, a memo. was filed giving up the defendants 2 to 6 on the ground already stated, that there was some difficulty in serving them, On the application for. attachment the following order was passed, "Claim in respect of attached property has been allowed. Petition dismissed." The decree-holder filed O.S. No. 35 of 1934 under Order 21, Rule 63 to set aside the claim order. The suit was dismissed by the trial Court on 18th March, 1935. There was an appeal against it and the appellate Court allowed the appeal and held that the property was attachable at the instance of the plaintiff. This was on the 22nd October, 1935. Thereafter the decree-holder filed an execution application to execute the decree by bringing the property that had already been attached before judgment to sale. He proceeded upon the footing that the attachment before judgment already made was still subsisting. The question is whether the attachment was subsisting Or, at any rate, whether it was restored when on appeal the claim of the first defendants wife was dismissed.

2. As certain points were not very clear in the original judgment of the District Court, I called for findings by my order dated 4th November, 1941. Two points were sent down for finding, (1) whether the shares of all the defendants had been attached before judgment in O.S. No. 211 of 1933 on the file of the District Munsiffs Court, Masulipatam, and (2) whether the partition alleged by the defendants was not a sham or collusive transaction in order to its being effected fraudulently and with intent to defraud the creditors. On the first question the District Judge finds that the shares of all the defendants had been attached before judgment. But he finds that it was not subsisting by reason of the fact that it ceased to exist when the application for attachment before judgment was dismissed on the 9th September, 1923. The District Judge finds that the fact that defendants 2 to 6 (the sons of the first defendant) were exonerated from the suit and that the suit proceeded only against the first defendant would not make any difference in this matter. The father alone can be sued as the manager of the family and in this case it is found that he was clearly sued as the joint family manager and that the attachment order of the 9th September, 1933, would bind the s