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4. Mr. Gupta appearing on behalf of the appellant urged the following points in support of the appeal : (1) that Section 47, Civil P.C., is a bar to the present suit; (2) that by Ex. 12, no trust was created; (3) that oven if any trust was created, it was illusory; (4) that even if the trust was not illusory, it is void as it is hit by Section 53, T.P. Act, and (5) that even if the trust was a valid trust, defendants 1 to 4 were entitled to seize the trust properties in execution.

5. By Section 47, Civil P.C., all questions arising between the parties to the suit in which a decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree are to be determined by the executing Court and not by a separate suit. Plaintiff in the present suit is not a representative of the judgment-debtor (father of defendant 5) as the suit in which the decree was obtained did not relate to any property and the trust was created before attachment. So far as the interest created by Ex. 12 in favour of the plaintiff is concerned, he cannot be said to be bound by the decree. It is true that in Ex. 12 he was added as a judgment-debtor along with the author of the trust. The finding of the trial Judge is that the plaintiff was not aware of the execution case started by Ex. 2. I find no reason for holding that his finding is wrong. Much reliance was placed upon Ex. D, the order sheet of the second execution case. In this order sheet it is recorded that the plaintiff filed some application in that case and that he was substituted in place of the judgment-debtor. The contention of the appellant is that he was substituted on his own application. The application alleged to have been filed by the plaintiff has not been exhibited on the ground that it has been destroyed. The plaintiff in his evidence says that he was not aware of this execution case at all. No attempt was made by the defendants to prove that the plaintiff filed any application in the second execution case or that he was aware of it. The addition of plaintiff in the petition for the last execution is inconsistent with the order for substitution of the plaintiff in place of the judgment-debtor in the second execution case. I cannot therefore accept the appellant's case that the plaintiff was substituted on his own application in the second execution case. It is true that where a question arises as to whether any person is or is not the representative of a party such question is to be determined by the executing Court for purposes of Section 47. In this case the question of the plaintiff being the representative of the judgment-debtor did not arise in the execution proceedings. It was neither raised nor determined. I am therefore of opinion. that the present suit is not barred under Section 47 of the Code.

8. As regards the fourth point, the contention of Mr. Gupta is that the trust is a fraudulent transfer within the meaning of Section 53, T.P. Act, as the effect of the document is to delay the payment of the debts to the creditors. A trust deed for the benefit of the creditors is prima facie not fraudulent within the meaning of the statute: 13 Eliz., Chap. V; Godfrey v. Poole (1888) 13 AC 497. But if it is a cloak for retaining a benefit for the debtor at the expense of the creditor, it is liable to be set aside under that statute at the instance of creditors who are not parties to it: Spencer v. Slater (1878) 4 QBD 13. In determining the validity of such trust the deed must be considered as a whole. If it is substantially for the benefit of the creditors a proviso beneficial to the debtor, if consistent with the tenor and object of the trust, will not render the deed void: Alton v. Harrison (1869) 4 Ch A 622. Sub-section (1) of Section 53, T.P. Act, reproduces in substance the provisions contained in 13 Eliz., Chap. V, with some modifications which are not material for the purpose of the present case. The point for determination therefore is whether this trust is simply a device for retaining a benefit for the author of the trust at the expense of his creditors.