Judgment :- 1. This is an appeal filed by the decree holder from an order, dismissing his application for execution of the decree in O. S.125 of 1952 of the Palghat Sub Court and raising the attachment of the properties scheduled to that application, on the objection of the 2nd respondent in this appeal. The 2nd respondent in CRP. 256 of 1961 had filed a petition under O. XXI R.58 objecting to the attachment of the properties. That petition was tried, and heard along with the objection petition filed by the 2nd respondent in this appeal and a common order has been passed by the court below. 2. A preliminary objection is raised by counsel for the respondents to the effect that no appeal lies from the order of the lower court. In order to appreciate the nature of the preliminary objection, it is necessary to state briefly the facts. 3. The appellant obtained a decree for money against respondents 1&2. It was a decree passed against them severally and in execution of this decree, the properties alleged to belong to the respondents were attached. 4. The 1st respondent was ex parte. The 2nd respondent contended that the properties attached were acquired by Ramaswamy Iyer, the father of the 1st respondent with his own private funds and that the same belonged absolutely to him; that he executed two trust deeds, Exts. B6 and B7, settling * the properties in favour of his grandchildren viz., the children of respondents 1 and 2; and that under the provisions of those trust deeds, the trusts were to last until the attainment of majority of the youngest child of the respondents. She also contended that as the properties belonged to the trust they were not liable to be attached in execution of the decree obtained against the 1st and 2nd respondents in their individual capacities. 5. She also contended that as the properties belonged to the trust they were not liable to be attached in execution of the decree obtained against the 1st and 2nd respondents in their individual capacities. 5. The court below came to the conclusion that the properties belonged to Ramaswamy Iyer, the father of the 1st respondent, that he executed two trust deeds, that he was himself the trustee for a period of one year from the date of the creation of the trusts, that thereafter the 1st and 2nd respondents were functioning as trustees, that the trust deeds were valid and came into effect, that the beneficiaries under the trusts were the children of the respondents and that the properties were not liable to be attached in execution of the decree against the respondents. 6. Now the preliminary objection is that the objection preferred by the 2nd respondent was an objection by her in her capacity as a joint trustee on behalf of the trust and therefore she was really in the position of a third party to the suit objecting to the attachment of the properties in execution of a decree, that in law, the objection can be considered to be only one under O. XXI R.58 of the Civil Procedure Code, and that no appeal would lie to this court. If, in law, the objection can be considered to be only one under O. XXI R.58, then no appeal would lie against an order passed on that objection. 7. We are of opinion that the preliminary objection is sound and ought to prevail. The objection preferred by the 2nd respondent was really one under O. XXI R.58 because the objection was preferred by her in her capacity as a joint trustee on behalf of the trusts. S.47 of the Civil Procedure Code says that all questions arising between the parties to the suit in which the decree was passed or their representatives shall be decided by an application in execution and not by a suit. Here, the 2nd respondent, though a party to the suit, was objecting to the attachment of the properties not in the capacity in which she was impleaded in the suit, but in a different capacity namely as one of the trustees of the properties. Therefore the objection preferred was really preferred by her in a capacity in which the decree did not bind her. Therefore the objection preferred was really preferred by her in a capacity in which the decree did not bind her. 8. In ILR. 42 Calcutta 440, Mukherjee, J., had to consider this question and he made the following observation at page 446: "This view is supported by the decision of the Full Bench in Kartick Chandra v. Ashutosh Dhara (1911 ILR. 39 Cal. 288). There it was ruled that when X, in execution of a decree for money against Y personally, attaches and proceeds to sell properties of which Y alleges that he is in possession, not in his own right but as shebait of a deity to whom the properties have been dedicated, the case does not fall within S.244 of the Code of 1882 or S.47 of the Code of 1908. The principle recognised by the Full Bench is that there is a fundamental distinction between a right acquired or liability incurred by Y in a personal capacity, and a claim advanced or defence interposed by the same individual in his capacity as shebait of a deity. If this distinction is borne in mind, the inference follows that when X, in execution of a decree for money against Y as shebait of a deity, attaches and proceeds to sell properties of which Y or his successor in office alleges that he is in possession, not as shebait of the deity, but in his own right, the case does not fall within the scope of S.47. Y, in his characters shebait, the only character in which he is a party to the suit, cannot rightly be deemed the same person in his character as a private individual." ...In ILR. 50 Allahabad 801 it was observed: "The authorities were examined in a recent judgment of a single judge of this court in Bhagwan Das v. Mahamed (1923) 75 I. C. 1033). There Mr. Justice Kanhaiya Lal held that in objecting to attachment of certain properties in the execution of a decree under O. XXI, R.58, of the Code of Civil Procedure, if the objector claims the property as the mutwalli of a trust I he does not do so as a representative of the judgment-debtor, even though the author of the I trust may himself have been the judgment-debtor, except where such trust is created after the S suit or the decree passed therein. We think the view taken by Mr. Justice Kanhaiya Lal is right and is supported by authority. It seems to us that in cases of this kind a judgment-debtor may fill two totally distinct legal characters. He may have property of which he is the beneficial owner. On the other hand, he may also be in possession of the property which he holds in trust on behalf of a third party. If this latter property is attached in the execution of a decree obtained personally against him he is surely entitled to apply to the court and say that the property which is being attached is not really his property at all but belongs to a third party for whom he is holding as a trustee, and an examination of the language of O. XXI, R.60, supports this conclusion, for there it is said that if the court on investigation finds "that property which is in the possession of the judgment-debtor at such time is so in his possession not on his own account or as his own property, but on account of or in trust for some other person, the court shall make an order releasing the property wholly or to such extent as it thinks fit from the attachment." It seems plain to us that a question of this kind may be raised by the judgment-debtor himself and that in such cases he is not raising it as judgment-debtor but in a totally different legal character, namely, that of a trustee for a third person. In this view, therefore, we are of opinion that no appeal can be entertained against the order of the court below in the present case." In AIR. 1939 Nagpur 185 it is held: "It is only when the judgment-debtor claims to represent the interest of a third party in whom the property is vested that the case would fail outside the purview of S.47. In such a case as this what the judgment-debtor says is that although the property is vested in him it is so vested not beneficially but as trustee or executor for some one else. In such a case as this what the judgment-debtor says is that although the property is vested in him it is so vested not beneficially but as trustee or executor for some one else. It is clear that in such a case the real objecting party is one who is a stranger to the suit and the objection having been made on his account his claim must be regarded as that of a third party and dealt with under 0.21, R.58." In AIR. 1936 Mad. 733 Mr. Justice Ramesam summarises the position as follows: "We got this conclusion, viz., where the impleading was in one capacity and questions (claims) are raised in execution objecting to the decree in another capacity they are not matters falling under S.47 and should be decided in a regular suit and no appeal lies against an order in execution, or in other words the capacity in which a party is impleaded has got to be looked to in applying S.47, the only exception to this rule being where the question is raised by a person as legal representative when, though there is apparently a different capacity, the question should be settled in execution." 9. Counsel for the appellant placed before us the ruling reported in AIR. 1927 Oudh.120. We do not think that we can accept the reasoning in that case. Except for the reference to the Privy Council decision, in Prosanno Kumar Sanyal v. Kasi Das Sanyal (19 I. A. 166), which if we may say so with respect, has nothing to do with the point under consideration, there is no discussion of the real point arising for consideration in that case. We see no reason why we should follow that ruling in preference to the other authorities cited above. We, therefore hold that no appeal will lie in this case. 10. Counsel for the appellant alternatively submitted that the appeal may be treated as a revision. As we find a jurisdictional error in the order of the court below, we acceded to that prayer. As the petition filed in the court below was really one under O. XXI, R.58, it was the duty of the lower court to have entered a finding on the question of possession. A perusal of the order has convinced us that the attention of the court below was not directed to the question of possession at all. As the petition filed in the court below was really one under O. XXI, R.58, it was the duty of the lower court to have entered a finding on the question of possession. A perusal of the order has convinced us that the attention of the court below was not directed to the question of possession at all. O. XXI, R.60 reads as follows: "Release of property from attachment. "Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment." 11. It appears to us that the lower court misdirected itself when it failed to enter finding as regards the possession of the properties. We think that it is a jurisdictional error, because the lower court failed to exercise the jurisdiction vested in it under the rule. The lower court, no doubt, considered the question of the validity of the trust and found that that trust was validly created by Ramaswamy Iyer. But it has failed to enter any finding on the question of the capacity in which the possession of the properties was held by the 2nd respondent. In considering the question that the trust has come into operation, the court below, no doubt, refers to certain receipts issued by the trustees to tenants to show that the trustees were in possession of the properties through tenants. But we are not satisfied that this is sufficient in law. the law requires is a finding as regards possession. In an enquiry under O. XXI, R.60, the title is relevant only in so far as it throws light on the question of possession. But we are not satisfied that this is sufficient in law. the law requires is a finding as regards possession. In an enquiry under O. XXI, R.60, the title is relevant only in so far as it throws light on the question of possession. We therefore, hold that the lower court has failed to exercise the jurisdiction vested in it and therefore, we are constrained to set aside the order and remand the case to the lower court for a fresh disposal. We make it clear that the court below need not take any further evidence for disposing of the case. 12. In the result, the order of the court below is set aside and the case remanded. We direct the court below to consider the evidence afresh and pass an order on the materials on record in the light of our observations made above. The appeal which we treat as a Civil Revision Petition is allowed in the manner indicated. We make no order as to costs. C. R. P. No. 256 of 1961. This revision petition is filed by the decree-holder, who is the appellant in A. S. No. 165 of 1961, against the order in E. A. 68 of 1959 allowing the objection filed by the eldest son of the respondent in the appeal. His contention was that he became one of the trustees after attaining majority and the properties comprised in the trusts could not be attached in execution of the decree against the respondents in the appeal. In view of our decision in A. S. No. 165 of 1961, this C. R. P. has to be allowed and E. A. 68/59 remanded to the court below to be disposed of in the light of our observation in A. S. No. 165 of 1961. The Civil Revision Petition is allowed, but without costs.