Norman Macleod, Kt., C.J.
1. This is an appeal from an order of the First Class Subordinate Judge on an application of a very curious nature. The plaintiff filed a suit against two defendants, who were father and son. The suit was dismissed against the first defendant, and decreed against the second defendant. The plaintiff applied to the Court to attach the property of the son. The first defendant then applied to the Court that the Court should not execute the decree against properties which he alleged belonged to him, but if the Court had granted execution and attached his properties the attachment should be raised. The learned Judge allowed affidavits to be filed and came to the conclusion that the first defendant had proved his case for the purpose of the application, and that the relief of the decree-holder was to bring a regular suit and get it declared therein that the property was of the judgment-debtor and liable to be attached and sold. So he ordered that the property should not be attached, and if the view were taken that they were already attached, as the Court had passed an order for attachment, he ordered that the attachment should be raised and that the plaintiff should get it first declared in a regular suit that the properties he sought to attach were of his judgment-debtor and liable to be attached in execution of his decree.
2. Now if the claimant, the first defendant, had been an outsider he would have had to prefer a claim against the attachment which would have been investigated under Order LVIII. The decision of the Court on that application would not be appeal-able. The remedy of the dissatisfied party would be by a suit, and it would certainly seam from the remarks of the Judge in the Court below that he thought he was making an order under Order XXI, Rule 60. But as the first defendant, although the suit had been dismissed against him, was still a party to the suit within the Explanation to Section 47, any question arising between him and the plaintiff with regard to the execution of the decree would have to be determined by the Court executing the decree, and not by a separate suit. Therefore the first defendant's claim to the property would have to be determined by the Court executing the decree.
3. But the real question is whether this application came within the provisions of Section 47 of the Code. It was open to the first defendant to ask the Court to hold that a question had arisen between the parties and to decide it. But the first defendant was exactly in the same position as any ordinary outsider claiming against an executing plaintiff with regard to his cause of action. An outsider could not prefer a claim to the property until injury had resulted to him by the property which he claimed to be his having been attached. He could not ask the Court to decide any question relating to the property until his property had been attached. The order directing that the property should be attached effected nothing against the interest of the first defendant. His application was in effect a quiatimet application to prevent that happening which he was afraid would happen if the Court after making an order for attachment of his property actually detained his property. No authority has been cited to us which sanctions such an application. In our opinion the application was premature and ought not to have been entertained by the Court. When the property had actually been attached, then the first defendant could complain that his rights had been interfered with and ask the Court to remove the attachment.
4. We should like to point out that the question which may arise with regard to this property between the plaintiff and the first defendant, and which may have to bb tried by the Court executing the decree, is not a question which could possibly be tried by affidavits. Evidently the Court considered, in dealing with the first defendant's application, that it was competent to deal with the matter in a summary manner, the question between the parties having to be ultimately decided by a regular suit, so that if this matter comes eventually before the Court, it will have to deal with the question on evidence, and that evidence would have to be taken in the same way as in a regular suit. The appeal must be allowed and the application dismissed with costs throughout.