JUDGMENT Yorke, J. - This is a second appeal in a suit for partition which was decreed by the trial Court but dismissed in appeal by the Sessions and Civil Judge of Lucknow. 2. The plaintiff Mst. Hidayat-ul-nissa sued for partition of a house and other property. The defendants to the suit were Mst. Zainab, mother of the plaintiff, her brother Jalal Uddin and her sister and two half brothers and a half sister. The contesting defendants were, however the mother Mst. Zainab and the brother Jalal Uddin. The plaintiff sought partition on the ground that she had a share in this property as one of the heirs of her father Amir Uddin. The defence was that Amjr Uddin had gifted the property to Mst. Zainab in the year 1900, and that subsequently Mst. Zainab had ' gifted it to Jalal Uddin in 1934. On this plea being raised, it was stated in oral pleadings in the trial Court that the gift executed by Amir Uddin in favour of Mst. Zainab was denied and it was said that even if it was proved, it was a fictitious transaction, that is to say the deed was not a real instrument of transfer but merely a colourable document not intended to effect any transfer. The contention that the document was fraudulent and intended to defeat creditors, that is an attack based on Section 53 of the Transfer of Property Act was not put forward doubtless for the reasons that such an attack involves the admission that the transfer is a real transfer, and a document intended to effect a real transfer but with a view to fraud is only voidable at the option of the creditors. 3. The learned Munsif came to the conclusion that the deed of gift executed by Amir Uddin on, the 3rd February, 1900, was a fictitious and colourable document. The lower appellate Court after a consideration of the whole of the evidence has come to the conclusion that the document is not fictitious and colourable. Prima facie this is a finding of fact not assailable in second appeal. Learned Counsel for, the appellant, however, puts forward the contention that this is one of those cases in which the proved facts upon the record do not warrant the inference of fact drawn from them. 4. Prima facie this is a finding of fact not assailable in second appeal. Learned Counsel for, the appellant, however, puts forward the contention that this is one of those cases in which the proved facts upon the record do not warrant the inference of fact drawn from them. 4. In effect learned Counsel concedes that the inferences of fact drawn by the learned Civil Judge cannot be assailed in the manner he suggests because his main line of attack on the finding is that the learned Civil Judge has discarded a piece of evidence by which he was really bound. I shall come to this piece of evidence in due course, and it is really the only piece of evidence which requires consideration in the case. The facts upon which the finding of the fact of the lower appellate Court has been arrived at are as follows: Mst. Zainab was married to Amir Uddin in 1884. On the 15th January, 1900, one Ram Charan sued Amir Uddin to recover the amount of certain debts and applied for attachment before judgment. Two days later he obtained an injunction restraining Amir Uddin from transferring any of his property which was served on Amir Uddin on the 18th January. This was the position when on the 3rd February, 1900, Amir Uddin executed a deed of gift of the house in suit in favour of his wife Mst. Zainab, admitting the existence of a dower debt due by him to. her. On the 10th February Ram Charan got a decree for Rs. 1,600. Thereafter at the end of 1900 or beginning of 1901 Amir Uddin made an application in insolvency. That application was dismissed on the 12th February, 1901, on the finding that Amir Uddin was in possession of the property and that the deed of gift executed by him in favour of his wife was fictitious. That order or judgment is not inter parties and was rightly left out of consideration by the learned Civil Judge. On the 9th October, 1903, Mst. Zainab obtained mutation in respect of the house, the name of Amir Uddin being struck off. 5. At a later date some [time in 1905 or 1906 Ram Charan proceeded to execute his decree by attachment of the house in suit. Mst. On the 9th October, 1903, Mst. Zainab obtained mutation in respect of the house, the name of Amir Uddin being struck off. 5. At a later date some [time in 1905 or 1906 Ram Charan proceeded to execute his decree by attachment of the house in suit. Mst. Zainab thereupon filed an objection under the provisions of Order XXI Rule 58 but on the 28th May, 1906, her objection was dismissed on the finding that the house in dispute did not belong to her but did belong to the judgment-debtor Amir Uddin, In the ordinary way it would have been the duty of Mst. Zainab to institute a declaratory suit under the provisions of Order XXI Rule 63, and failing the institution of such a suit, Order XXI Rule 63 provides that the order in the objection case shall be conclusive Such a suit is to be instituted within one year. Before that year could elapse, and in fact within a fortnight of the dismissal of the objection the amount of the decree was paid up, and in consequence the attachment was withdrawn. The learned Civil Judge has held that in these circumstances the order of the Subordinate Judge in the objection case does not make the matter final and is not at all binding with regard to the fraudulent nature of the deed of gift. In effect an order under Order XXI Rule 63 is really final as to the title of the objector rather than as to the fraudulent nature of the deed of gift, and in any case the question in issue in the present suit was not whether the deed of gift was fraudulent but whether it was fictitious. 6. Subsequently on the 19th October; 1915, Amir Uddin and Mst. Zainab executed a mortgage of the house in dispute and in 1920 it is said that Amir Uddin died in this very house. In 1933 Mst. Zainab redeemed the mortgage of 1915 by payments out of Court made by Jalal Uddin, and finally on the 7th December, 1934, Mst. Zainab executed a deed of gift in favour of Jalal Uddin. 7. The learned Civil Judge taking all these facts into consideration was of. the opinion that the deed of gift was genuine and not fictitious. Zainab redeemed the mortgage of 1915 by payments out of Court made by Jalal Uddin, and finally on the 7th December, 1934, Mst. Zainab executed a deed of gift in favour of Jalal Uddin. 7. The learned Civil Judge taking all these facts into consideration was of. the opinion that the deed of gift was genuine and not fictitious. In regard to the decision of the objection case in 1906 he held that in as much as the attachment was withdrawn within the period of limitation for filing a suit, it was no longer necessary for Mst. Zainab to institute a declaratory suit, and therefore the finding in the objection case lost its finality, and in fact ceased to have any effect. Th9 main argument which has been put forward in this appeal as an attempt to restore force to >the judgment in the objection case. In order to be able to give some strength to the argument that the facts on the record do not warrant the conclusion of fact arrived at, learned Counsel attempts to draw a distinction between cases in which the claim of the objector has been allowed and it is for the decree-holder to institute a suit and cases in which the objection has been dismissed and it is for the objector to institute such a suit. He contends that although it may not be necessary for the objector to institute a suit against the decree-holder in cases where the attachment has for any reason been withdrawn within, the period of limitation for filing a suit, it is none the less necessary for the objector to institute such a declaratory suit making the judgment-debtor a defendant. Learned Counsel has not been able to put forward any decision of any High Court to that effect. In Mulla's Commentary on the CPC (10th Edition at page 785) the learned Commentator in a paragraph headed "suit not necessary if the property is released from attachment within the period of limitation " sums up the result of a number of cases as follows: "Where after an order his Mowing the claimant's claim and directing the attachment to continue, the attachment ceases within the period of one year from the date of the order e. g. by reason of the dismissal of the application for execution under, rule. 57 above for default of prosecution or by reason of the withdrawal of attachment on payment by the judgment-debtor to the decree-holder of the amount of the decree, it is not incumbent upon the claimant to institute a suit under this rule or to prosecute the suit if he ha already brought one, and will not be affected by any of the consequences which result from a failure to institute a suit under this rule." 8. That is to say in such a case the order which had been made in the objection case ceases to be conclusive. 9. In my opinion there was no necessity for Mst. Zainab to institute any suit for a declaration and the order in the objection case is entirely without effect and was rightly discarded by the lower appellate Court as a piece of evidence bearing on the question whether or not the execution of the, deed of gift by Amir Uddin was a fictitious transaction. 10. Learned Counsel for the appellant has sought to base some arguments on Section I 53 of the Transfer of Property Act and Section 84 of the Indian Trusts Act. It, is sufficient to say that Section 53 could have no application to this case it being the definite case of the plaintiff that the deed of gift was fictitious and not that it was voidable as executed with fraudulent intention. As regards Section 84 any argument based on that section proceeds on the assumption that the document in question has been assailed (as is liable to be assailed) u/s 53 as executed with the intent to commit fraud. 11. Learned Counsel has concluded by the general argument that the facts which have been set out, discussed and considered in the lower appellate Court's judgment do not warrant the conclusion of fact. In my opinion this is the weakest line of attack possible upon a finding of fact. The finding of the lower appellate Court is based on a consideration of all the facts, and I am not prepared to say that on a reasonable consideration of those facts it is not a possible conclusion that the deed of gift was a genuine document intended to effect a transfer of the property in favour of the donor's wife, Mst. Zainab. Zainab. In these circumstances the lower appellate Court rightly held that the plaintiff's claim to partition of the property could not succeed and therefore dismissed the plaintiff's suit. 12. I find no force in the present appeal which is really concluded by findings of fact and I dismiss it accordingly with costs.