Horwill, J.

1. The third defendant obtained the property of the late Govinda Pillai by way of surrender from his daughter; but he gave an undertaking that he would pay off certain debts. He mortgaged usufructuarily a substantial item of property in favour of the plaintiff; and the consideration for it was partly to discharge e debt of the late Gbvinda Pillai and partly to discharge the private debt of the third defendant. The first defendant claimed to be a creditor of the late Govinda Pillai; and he obtained a decree against the daughter of Govinda Pillai, that is, the second defendant, and against the third defendant. In execution of that money decree, he attached certain property said to belong to the late Govinda Pillai, including the property which had been usufructuarily mortgaged to the plaintiff. He alleged that this mortgage was nominal and false. The plaintiff resisted the attachment of this property; but was unsuccessful. He therefore filed this suit under Order 21, Rule 63, Civil Procedure Code, to set aside the summary order; and it has been held by the lower appellate Court that this was not a nominal transaction and therefore passed a decree as prayed for.

2. I