1. The question for decision in this Civil Miscellaneous Appeal is whether Item No. 1 attached by the decree-holder-respondent does not form part of the estate of the late A. P1. A. Palaniappa Chettiar.

2. Periannan Chettiar, the 1st respondent herein, instituted a suit on a hundi drawn by Palaniappa Chettiar, the deceased father of the 2nd defendant the appellant before us and obtained a decree in O.S. No. 86 of 1931. This decree, was to recover the decreed amount "from the 2nd defendants share in the family properties if any and also from the separate assets if any of his father in his hands." In execution of this decree Item No. 1 in the list of properties filed in E.P. No. 87 of 1932 was sought to be attached by the appellant as property belonging to the late Palaniappa Chettiar. The 2nd defendant-appellant objects to the attachment on the ground that this item, which is an amount of money, is not liable to be attached in execution of the decree as it does not belong to the late Palaniappa Chettiar. The only point for consideration is whether Item No. 1 formed part of the estate of the late A. P1. A. Palaniappa Chettiar.

3. The appellants case is that the amount of money forming Item No. 1 was set apart at the time of his mothers marriage as a trust fund for the benefit of his mother and her children. It appears from the papers and this fact is not denied that at the time of the marriage of his mother with his father the bridegrooms maternal uncle, the decree-holder in this case, deposited Rs. 1,500 at the instance of the brides father in the name of her husband, that is, the deceased Palaniappa Chettiar, on the maral of the bridges father. The appellants case is that according to the custom prevailing amongst the Nattukottai Chetties such money though deposited in the name of the husband is really in the nature of a trust fund which will enure to the advantage of the bride and her children and that they are really beneficiaries of the amount which is in the nature of a trust held by the trustee, the husband. It is, therefore, contended that this item No. 1 cannot be proceeded against in execution of the decree as it belongs to the 2nd defendant and other children of the deceased Palaniappa Chettiar. The oral evidence adduced on behalf of either side was discarded by the lower Court as interested testimony. The lower Court held that there was nothing to show that the money deposited in the circumstances mentioned above should be considered to be a trust fund, but it held that the maraldar has some control over the money in question and acts as an effective check on the indiscriminate withdrawal of the money by the person in whose name it was deposited. In the opinion of the lower Court, whatever restrictions there may have been so far as Palaniappa Chettiar was concerned in his dealings with the money, those restrictions all passed away after his death and the amount became subject to the claims of decree-holders who have obtained decree against him. For these reasons the objections of the 2nd defendant-appellant were over-ruled.

4. In this appeal a preliminary objection was taken by Mr. Ramabhadra Ayyar that no appeal lies against the order under Section 47, Civil Procedure Code, his objection being that since the appellant urges an independent claim to the property, his position is analogous to that of a claimant under Order XXI, Rule 58, Civil Procedure Code, and so far as he is concerned the proceedings relate to the investigation of claims under Order XXI, Rule 58, and the subsequent sections and his remedy against the lower Courts order is to file a suit to set it aside and not to prefer an appeal under Section 47, Civil Procedure Code. This contention is based mainly upon the decision in Budrudeen Sahib v. Abdul Rahim Sahib 31 M 125 but that decision is inapplicable because there the judgment-debtor objected to the attachment on the ground that he held the property in trust for some third persons; the objection