Costello, Ag. C.J.
1. This is a somewhat curious case. The appellants before us, Messrs. H.N. Dutta & Co., acted as solicitors for certain persons of the name of Mitra who were the plaintiffs in a partition suit. That suit was brought against a lady named Srimati Tarubala Dassi, and on 31st March 1924 a decree was made whereby the shares of the parties were allocated, two-thirds share being given to the plaintiffs and a one-third share to the defendant. It was said that decree was made as a result of a compromise between the parties. For some reason or other, to which we need not refer, the lady was not satisfied with what had been done and she accordingly appealed to this Court Vide : AIR1925Cal866 with the result that the decree of 31st March 1924 was set aside. Thereupon the Mitras took the matter to His Majesty in Council and, eventually, on 23rd January 1930, Vide an Order was made by His Majesty in Council whereby the decision of this High Court was set aside and the decree made by the Subordinate Judge of Hooghly restored. In the course of a somewhat protracted proceeding, costs had been incurred as between the Mitras and their solicitors. In order to satisfy those costs they executed an indenture which is dated 16th December 1931; in the course of the proceedings in the Court below it was identified as Ex. A and described as a deed of assignment executed by Surendra Nath Mitra and others in favour of Messrs. H.N. Dutta & Co. Messrs. H.N. Dutta & Co., on the basis of that instrument, instituted proceedings in the Court of the Subordinate Judge of Hooghly for the purpose of realizing the debt due from the defendant Tarubala Dassi to the Mitras and so for obtaining payment either wholly or in part of the costs to which they were entitled. The proceedings took the form of an application for a transfer of the decree from the Court of the Subordinate Judge of Hooghly to the Original Side of this High Court in order that it might be put to execution here. In opposition to the application made by Messrs. H.N. Dutta & Co., as the purported assignees of the decree, Srimati Tarubala Dassi put forward certain objections. Consequently, why it was so I am not at all clear, a fresh case was started in which Tarubala Dassi became the applicant and Messrs. H.N. Dutta & Co. became the respondents or the opposite parties. It matters very little which of these parties are described as applicants and which of them are described as respondents or opposite parties, because the real controversy in the matter which the learned Judge had to determine is whether or not there should be a transfer from the Court of the Subordinate Judge of Hooghly to this Court or something which was stated to be a decree and something which we are now informed was intended to be the decree represented by the Order in Council made by His Majesty on 23rd January 1930. The proceedings initiated by Messrs. H.N. Dutta & Co. took place by virtue of the provisions of Rule 16 of C.21, Civil P.C., which Rule is as follows:
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.
2. We may take it for the purposes of this case that if there had been a valid assignment of the decree or of a decree, Messrs. H.N. Dutta & Co. could have taken advantage of the provisions of that Rule. They could also have taken advantage of the provision which enables the Court to transfer a decree from itself to another Court for the purpose of execution. Those provisions are contained in Section 39, Civil P. C, which says:
The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court;
and then are set out the conditions in which that can be done. The learned Judge in the course of the judgment which is to be found under the serial number of orders or proceedings No. 13, and under date 23rd February 1935, amongst other things, said:
For the aforesaid reason and also in view of the provisions of Section 39, Civil P.C., I therefore hold that the opposite party's prayer for transfer of the decree to the Original Side of the Hon'ble High Court for execution is not maintainable.
3. Now 'the aforesaid reason' referred to by the learned Judge is this: under the decree of 31st Maroh 1924, that is to say under the original decree in the partition suit brought between the Mitras and Tarubala Dassi, the defendant was entitled to receive a sum of Rs. 1,400 per month by way of maintenance, and that sum was due to her as from 3rd September 1923 from the Mitras who were of course the original decree-holders. In course of time the amount due to the lady had risen to the large sum of Rs. 70,000. So the learned Subordinate Judge held that the Mitras could not have obtained execution against Tarubala Dassi in respect of the costs which she owed to them and which at the most amounted to something like Rs. 10,000, because she was entitled to a set-off of a proportionate part of Rs. 70,000 and if the Mitras could be met by such a plea, equally so the assignees from them, Messrs. H.N. Dutta & Co. could be met by a similar plea on the part of the judgment-debtors. In those circumstances the learned Subordinate Judge came to the conclusion that the provisions of Section 49, Civil P. C, came into operation and that the judgment-debtors could take advantage of those provisions as an answer to the case which was being put forward by Messrs. H.N. Dutta & Co. Section 49 says:
Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.
4. Mr. Bose appearing on behalf of Messrs. H.N. Dutta & Co. has objected to the course adopted by the learned Subordinate Judge in dealing with the question of equities at all when the matter was before him. Mr. Bose has invited us to say that as regards that matter any decision at that stage was, to say the least of it, premature. The question whether a set-off can be taken into consideration or not can only arise at the time when a decree is actually being put into execution. As to the decree with which we are concerned there never was a stage at which the decree was put into execution, because it would have been executed, if at all, by the Court to which Messrs. H.N. Dutta & Co. was seeking to have it transferred. With those contentions of Mr. Bose we are disposed to agree. We think it was not necessary for the learned Subordinate Judge to have discussed the question of equities at all. It may well be however that even if there had been a valid assignment of a decree, it was still quite open to the learned Subordinate Judge to exercise a discretion whether or not the conditions set forth in Section 39 obtained. I think it was quite open to him to say that they did not, because the word used in the section is the word 'may' in connection with the word 'send' and not the word 'must' or 'shall'. In other words, the provisions of Section 39 are permissive and not mandatory. But we think it was not necessary that the learned Judge should have granted the application of Tarubala Dasi upon that sort of basis, as we are quite satisfied that there was a far more fundamental and fatal objection available to the lady. We are assured by Dr. Basak, and indeed it appears that a point was taken though it is not discussed by the learned Subordinate Judge, one which we think is of paramount and indeed conclusive importance in this matter. That point is this: that under the terms of the indenture of 18th December 1931 it contained no assignment of any decree or any part of a decree. If the instrument had purported to assign a part of a decree, any such purported assignment would in our opinion have been inoperative. But there is no assignment of that kind and no assignment of any decree at all. The material part of the instrument appears at p. 38 of the paper-book. It is in these terms:
The party hereto of the second part doth hereby assign and transfer unto and to the said assignees all the said sum of pounds six hundred fourteen and eleven pence only and rupees thirty-six and annas eight only and rupees two thousand and rupees six hundred and eighty-seven and one anna so payable by and recoverable from the said Sreemati Tarubala Dassi as aforesaid under and by virtue of the said decrees and orders including the hereinbefore recited decree and order of His Majesty's Privy Council and the full benefit and advantage of the said four sums of money or any other sum at which any of them be taxed and passed respectively and the estates, rights, titles and interests, claims and demands of the assignors therein and thereto respectively.
5. Mr. Bose has asked us to hold that those words are sufficient to transfer to Messrs. H.N. Dutta & Co. the benefit of the Order in Council made by His Majesty on 23rd January 1930. In our view that is not the position. There are no words in this indenture which purport to assign the Order in Council or which can be properly regarded as an assignment of a decree, nor are there any words assigning the other decrees enumerated in the document or any of them. What the document does in our opinion is to assign the benefit of a debt due from Srimati Tarubala Dasi to the Mitras. It may well be that, so far as the document does that, it is good and valid in law and Messrs. H.N. Dutta & Co. may still have available other and more appropriate remedies. But it is abundantly clear to my mind that they never obtained any assignment of any decree which they, as assignee decree-holders (if they may be so described) can put to execution. Therefore they never were in a position to ask the Subordinate Judge at Hooghly or any other Judge or Court to transfer a decree from that Court to this Court. That indicates the point which I have described as fundamental and fatal. In my opinion it is a complete answer to the contentions of Messrs. H.N. Dutta & Co. in connection with their application for the transfer of a decree from Hooghly to Calcutta. That being so, the learned Subordinate Judge was quite right in allowing the application of Srimati Tarubala Dasi as the objector and in dismissing the application of Messrs. H.N. Dutta & Co. as the alleged assignee of the decree.
6. We desire however to make it clear that in our opinion the reasons given by the learned Judge for taking the course he did ought not to be allowed to stand in the way of Messrs. H.N. Dutta & Co. in their pursuit of other remedies upon the basis of the indenture of 18th December 1931, should they be advised to take other steps in the matter. This appeal is dismissed with costs.
7. I agree.