1. This is an appeal from an order of the Subordinate Judge of Nadia dated 9th July 1931 made in the course of execution of a decree. It is necessary to state a few facts in order to determine the soundness or otherwise of the contentions raised on behalf of the judgment-debtors who are appellants before us. It appears that the decree-holder in the present execution case, Joy Durga Dasi, obtained a decree against the appellants for a sum of Rs. 6,093 odd. It further appears that the judgment debtors Saroj Ranjan Sinha and others obtained against the decree-holder Joy Durga Dasi a decree for a certain sum of money. Joy Durga put her decree into execution on 15th November 1929. In that execution case she calculated the amount which was due to her and allowed a set-off and the total sum after allowing the set-off due to her came to about Rs. 6,156 odd. Then Joy Durga instituted a title suit against the present judgment-debtors but she failed in all Courts including the Privy Council and the costs awarded against her in favour of the present appellants have been stated to be Rs. 326 in the first Court, Rs. 1,004 in the Second Court, that is in the High Court, and 238 are the costs awarded against her by the Judicial Committee of the Privy Council.
2. On 29th November 1929 the present appellants applied for transmission of the order of His Majesty in Council to the lower Court under the provisions of Order 45, Rule 15, Civil PC. After the said order was transmitted it was open to Joy Durga to take the plea of set-off. On 10th December 1929 Joy Durga made an application for set-off of costs due to the judgment-debtors which came to about Rs. 4,442. On 11th December 1929 the Court executing the decree of Joy Durga, that is the Subordinate Judge of Nadia received a notice of attachment before judgment of the decree which Joy Durga the decree-holder had obtained against the present appellants. That order was made in Suit No. 167 of 1929. On 15th January 1930 the same Court received another notice of attachment before judgment in respect of another suit which is said to be numbered 65 of 1930. An objection was filed on behalf of the appellants that as the decree sought to be executed by Joy Durga formed the subject matter of the present execution proceedings the property was directed to be attached and notice of attachment had been received by the Court of the Subordinate Judge that had the effect of arresting the execution of the decree of the present decree-holder respondent, namely Joy Durga Dasi. This is the objection which was taken before this Court although it was not taken precisely in the present form before the executing Court. The precise objection which was taken before that Court is to be found in para. 8 of the petition of objection on behalf of judgment-debtors filed on 15th February 1930 where the objection ran in these terms:
These judgment-debtors have got the decree in money Suit No. 167 of 1929 of your Honour's Court and the decree in money Suit, No. 65 of the First Munsif's Court at Krishnagar passed in favour of the decree-holder put under attachment before judgment. Under the circumstances there cannot be any set-off.
3. It appears therefore clear that the objection which is now taken before us is that the effect of the attachment before judgment brought about at the instance of the present appellants was to arrest or stay the execution of the decree of the present decree-holders against the judgment.debtors. This argument which has been addressed to us will be dealt with later on. It will be sufficient to state here that the objection which was taken did not prevail with the Subordinate Judge who remarked on this part of the case as follows:
In this case we find that as soon as the decree-holder filed an application for set-off the judgment-debtors brought suits and got the decree of the decree-holder attached before judgment, thus making it impossible for her to realize her own dues while keeping their liabilities unpaid.
4. The Subordinate Judge accordingly allowed the prayer of the decree-holder and allowed also the decree of the judgment-debtors to be set-off as against the decree of the decree-holders, and execution was directed to be taken in respect of the balance. Against this order the present appeal has been brought and the main contention which has been advanced before us is, as has already been indicated, that the execution of the decree cannot proceed against the appellant in view of the two requests made before the different Courts for attachment before judgment of the decree now sought to be executed. This argument is based on the provisions of Order 21, Rule 53, Civil PC. It is argued that where the decree sought to be attached was passed by another Court then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree. It is said that notwithstanding the use of the words or his judgment-debtor' in Clause (ii) after the words executed the effect of the attachment is to stay the execution permanently. This view is opposed to the clear provisions of the statute. On the other hand it is to be noticed that the introduction of the words or his judgment-debtor' in Order 21, Rule 53(b)(ii), after the words 'to be executed' in the Code of 1908 give a legislative recognition to what has been understood to be the law, so far as this Court is concerned, so far back as in the year 1897, when Sir Francis Maclean, C.J., observed with reference to the corresponding provisions of Section 273 of the Code of 1882 as follows:
The judgment-creditor still had an interest In the decree which he had obtained, and the attachment order did not prevent him from presenting the decree with a view to its execution. Such a step would not be adverse to the rights of his own judgment-creditor, as it would be for the interest of both, that if possible, the fruits of the decree should be obtained by execution.
5. The introduction of the words 'or his judgment-debtor' in the Civil Procedure Code, 1882 really recognizes this rule of law which was stated correctly by Sir Francis Maclean in the case of Adhar Chandra Das v. Lal Mohun Das (1897) 24 Cal 778 to the decision of which reference has just been made. The learned advocate for appellants, Mr. Bhattacharjya, has argued with great force that if the view is taken it defeats the object which it was intended to secure by this provision of the statute. We have to administer the law as we find it, and the express words of Order 21, Rule 53, as they now stand after amendment leave no room for doubt that it is open to both judgment-debtors and decree-holder in the present case to execute the decree which is the subject matter of execution. That this is the correct view of law has also been recognised by a recent decision of the Bombay High Court in the case of Chanbasappa Na-gappa v. Halibasappa AIR 1924 Bom 383 where Sir Norman Macleod, C.J., observed with reference to the matter before him as follows:
Under Sub-Rule (3) the holder of the decree sought to be executed by the attachment of another decree of the nature specified in Sub-Rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.
Again he says:
The stay does not prevent either the holder of the decree sought to be executed or the judgment-debtor from seeking to execute the original decree, and that being the case, time must be taken as running against them.
6. In another passage the learned Chief Justice also made the following remarks which may be usefully quoted:
From another point of view this must be the necessary result of the proceedings Under Order 21, 14, 53(1)(b). Otherwise the proceedings between the original decree-holder and his judgment-creditor might continue over an unlimited space of time to the great disadvantage of the original judgment-debtor who might be faced with proceedings in execution many years after the decree has been passed without any inter-modiate steps being taken in aid of execution.
7. The view expressed in Adhar Chandra Das v. Lal Mohun Das (1897) 24 Cal 778 and Chanba-sappa Nagappa v. Halibasappa AIR 1924 Bom 383 seems to be in consonance with common sense and we are therefore unable to accept this contention of the appellant which must be overruled. The next ground taken is that there can be no set-off as there has been no application for execution of the decree by the judgment-debtors-appellants and that there-is only an application to this Court under the provisions of Order 45 Rule 15, Civil PC., for transmission of the decree of His Majesty in Council and it is said that as the appellants are entitled not only to the costs of the Privy Council but also to the costs of the two Courts below there ought to be proper application for execution before Order 21, Rule 18 of the Code can be called into play. It is to be noticed however that this objection was not taken in the Court of first instance and we do not think that we should allow it to be raised at this stage. This contention therefore fails. The result is that this appeal fails and must be dismissed with costs. The hearing fee is assessed at two gold mohurs.
8. I agree that this appeal must be dismissed. It has an air of unreality about it and it must have been brought for some ulterior purpose. The order which the appellants seek to set aside is an order to their advantage and I cannot see that they have got any grievance.