1. This application is in the form of an appeal against the order of the learned Master dismissing the application of one Surpat Singh Dugar, for leave to execute an order for costs made by His Majesty in Council against certain minors as representatives of a deceased respondent in the Privy Council proceedings. The learned Master has set out the facts in detail, and has dealt very fully with the questions raised. The salient facts are as follows: one Chhatrapat Singh Dugar, the father of the present applicant, made an unsuccessful attempt to have himself adjudicated an insolvent under the provisions of the Provincial Insolvency Act. Being aggrieved by the refusal of the Courts in India to adjudicate him, he appealed to His Majesty in Council, and on 23rd November 1916, the appeal was allowed, Chhatrapat was adjudicated an insolvent, and an order for costs was made against the respondents generally. Among them was a creditor of Chhatrapat Singh, by name Raja Bijoy Singh Dudhoria. A receiver was appointed of the insolvent's assets on 2nd August 1917, by the District Judge of Murshidabad, exercising insolvency jurisdiction.
2. The insolvent died on 25th April 1918. On 17th February 1921, the order of His Majesty in Council was sent to the Murshidabad Court. On 6th November 1922 the receiver in the insolvency proceedings resigned, and no other receiver was appointed to take his place. Meanwhile, there was a partition suit pending on the Original Side of the Court, to which the parties were the heirs of the deceased Chhatrapat. In that partition suit there was a reference to arbitration, and by an award of 23rd November 1922, the present applicant was allotted the benefit of the Privy Council order for costs. I am told that with regard to the insolvency the position was that most of the creditors had been paid in full, but that the claim of one alleged creditor was still outstanding. The heirs of Chhatrapat were contesting this claim, and had furnished security for its payment in case the claim was established. In April 1923 there was an application to which the present applicant was a party for execution of the order for costs against Raja Bijoy Singh Dudhoria, but it was abandoned and dismissed for default on 26th May 1923.
3. On 20th January 1926 the present applicant made an application under Section 39, Civil P. C., for transmission of the decree to this Court for execution. In accordance with the rules he presented a tabular statement, and in the column provided for stating the name of the person against whom execution of the decree was sought, he entered the name of Bhagabati Prosad, described as proprietor of Ramsarup Suryaprosad of No. 7 Kalakar Street, Calcutta. In the column provided for setting out the mode of execution, the applicant stated that, as the moveable and immoveable properties of Bhagabati Prosad consisted of the premises No. 7 Kalakar Street, Calcutta, he asked that a certificate might be sent to the High Court, Calcutta. He also set out that Chhatrapat was dead, and stated that on the basis of the award he had become entitled to the benefit of the order for costs. The order sheet of the Murshidabad Court states that the applicant has asked for issue of a certificate to the High Court for execution of the order for costs against creditor No. 33, Ramsarup Suryaprosad, who was one of the principal respondents in the Privy Council appeal. It also states that the application alleges that the said creditor Ramsarup Suryaprosad has property within the jurisdiction of the High Court.
4. The order sheet shows that the Court made an order for the issue of the certificate for which the applicant prayed. On 26th November 1928 a tabular statement was filed in this Court against Raja Bijoy Singh Dudhoria, and directions were given for a notice to issue under Order 21, Rule 22. The proceedings have hung fire for a considerable time, in the course of which Raja Bijoy Singh Dudhoria has died, and an order has been obtained for substitution of the present respondents as his representatives and for the appointment of a guardian ad litem. The Master finally disposed of the matter on 18th February 1936. A large number of objections were taken on behalf of the respondents, but I do not think it is necessary to deal with all of them. For the first time before the Master a contention was raised that the proceedings were vitiated by the fact that in the order of the Privy Council Raja Bijoy Singh Dudhoria's name appeared as Raja Benoy Singh Dudhoria. The learned Master has accepted the contention of the respondents on this part of the case, and this clerical error in the Privy Council order is one of the reasons why he has dismissed the application. He points out that no Court has the power to correct clerical or other errors in a Privy Council order, and he suggests that the only way of putting matters right is to make an application to the Privy Council. I do not think it necessary to decide this point, but certainly my sympathies are with the applicant.
5. There is no doubt as to the identity of the person, and I think there is considerable force in the contention that as Raja Bijoy Singh Dudhoria himself took part in the insolvency proceedings and resisted the application for execution of the order without taking any exception to the form in which his name appeared in the order, he must be taken to have waived any objections that he might have put forward, and also that his representatives, after his death, are bound by such waiver. I see no injustice in this, and to decide otherwise and hold the proceedings against Raja Bijoy Singh Dudhoria and his representatives are bad throughout, because of this clerical error, recalls the days when the harshness of the criminal law was mitigated by the tendency of the Courts to direct the jury to acquit, because of the omission of one of the Christian names of the prisoner from the indictment. I have not heard counsel for the respondents on this point, so I am not in a position to decide it.
6. To my mind the most important question raised is that regarding the application and construction of Section 39, it will be noticed that in the application for transfer the name of the respondent Raja Bijoy Singh Dudhoria was not mentioned, and it is not suggested that if he had been the sole respondent in the Privy Council proceedings, there was any ground which would justify an order for transfer of the decree for execution to this Court. Learned counsel for the applicant points out that under Section 39 the only power a Court has got is to send the decree for execution to another Court, and that there is nothing in the language of the section which would lead one to suppose that the Court has the power to qualify the mode of execution by which the decree is to be enforced by the Court to which it is transferred, or to limit the number of the judgment-debtors against whom execution proceedings may be taken in that Court. He quite rightly says that if the legislature had thought it right to impose any limitations of the nature suggested, it could have made its intention clear. From the language of the order for transfer as also from the materials on which the order was based it is clear that the grounds for the order were those set out in Sub-section 1 (b). It cannot be suggested that Sub-section 1 (d) has any application to the facts of this case, for the Court was not asked to record, nor did it record, any reasons in writing why the decree should be executed by another Court. Various authorities have been referred to in support of the proposition that the Court has no power to make a limited order for transfer. In my opinion however the question depends not upon the language of this particular order, but upon the language of the section. Having regard to the scheme of the section, I have come to the conclusion that where the condition justifying transfer is that set out in subSection 1 (b), the intention of the section is that execution should be limited to execution against the judgment-debtor who satisfies that condition. To hold that a judgment-debtor may obtain an order for transfer on the ground that one judgment-debtor has no property within the local limits of the Court which passed the decree, and has property within the local jurisdiction of another Court, and may then execute the decree through such other Court not against that judgment-debtor but against another judgment-debtor who does not fulfil that condition, seems to me so absurd that the section must be given the limited construction which I indicated.
7. I decide therefore that the learned master was right in holding that this Court has no jurisdiction to execute the order against any judgment-debtor except Bhagabati Prosad. This is enough to dispose of the appeal. There are other interesting points raised; among them is the question of the title of the applicant to execute the decree at all. Admittedly, as long as the insolvent was alive, the benefit of the order for costs was vested in the receiver. I think upon a true construction of Section 58, Provincial Insolvency Act, that on the receiver's death, the insolvent's estate was vested in the insolvency Court. The right of the present applicant to execute the order for costs is justified by his counsel on the ground that the Court having given him leave to execute the order, he must be regarded as an agent to take proceedings which have been sanctioned by the Court within the meaning of Section 59 (e). In none of his applications does he ask to be appointed an agent, nor does the Court anywhere purport so to appoint him. It is a little difficult to see on what his title to the decree exactly rests, or when the decree ceased to vest in the insolvency Court. There has been, as far as I can see, no formal order terminating the insolvency proceedings or releasing any part of the insolvent's assets in favour of his heirs. It appears to me very doubtful if the benefit of the order could be allocated by the award of the arbitrators and there is the further difficulty that although the arbitrators directed assignments to be made by the co-sharers inter se, no assignment of the order has ever been executed; nor has any decree been passed in terms of the award.
8. In my judgment the decree cannot be rightly said to have been transferred to the applicant by operation of the law within the meaning of Order 21, Rule 16. Nor do I think that it has been transferred by assignment, and if it has been transferred by assignment, it is conceded that the proviso to Rule 16, requiring notice of the application for execution to be given to the judgment-debtor, has not been observed. I am therefore disposed to hold that the applicant is not in a position to execute the order as against the heirs of Bijoy Singh Dudhoria. I do not propose to deal with the issue of limitation, which has been raised, and I bold that upon a true construction of Section 39, Civil P. C., and in the circumstances in which the order for transfer was made, this Court has no jurisdiction to give leave to execute the order for costs against any respondent except Bhagabati Prosad, and possibly against any other respondent who satisfies the condition of Section 39 (1) (b). This application is therefore dismissed with costs. Costs as of a motion.