Phear, J.@mdashNow it seems to us plain that the parties and the Courts below have entirely misapprehended the nature of this suit. When the Mussamat assigned her decree to Rughu Nundun, he only became entitled to execute the decree under the provisions of s. 208 of the Civil Procedure Code, because he was not the original decree-holder. And the terms of that section are very explicit. They are as follows:--
If a decree shall be transferred by assignment, or by operation of law, from the original decree-holder to any other person, application for the execution of the decree may be made by the person to whom it shall have been so transferred or his pleader; and if the Court shall think proper to grant such application, the decree may be executed in the same manner as if the application were made by the original decree-holder.
The Munsif''s Court seems to have entertained the question whether Rughu Nundun was entitled under this assignment which he had obtained from the Mussamat, to execute the decree which she had formerly obtained against the present plaintiff, and to have come to the conclusion that there was sufficient cause within the meaning of this section for allowing him to execute that decree. That being so, he could have only executed it in the manner in which the original decree-holder would have executed it had the assignment not been made, and in the matter of the execution he must be subject in all respects to the same considerations as regards the execution, as the original decree-holder would have been. In short, for the purpose of executing this decree, he must be considered and treated in all respects as if he were an original decree-holder, and in that character party to the suit.
2. Then s. 11, Act XXIII of 1861, enacts that all "questions, arising between the parties to the suit in which the decree was passed and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit, and the order passed by the Court shall be open to appeal."
3. It is therefore plain that the question which was raised by the present plaintiffs upon the application of Rughu Nundun to execute the decree of the Mussamat, namely, the question whether they were entitled to have the benefit of a set-off of their decree against the Mussamat in the Subordinate Judge''s Court, was a question relating to the execution of the decree. And it was a question which, within the meaning of s. 11, Act XXIII of 1861, arose between the parties to the suit, although Rughu Nundun was not the person who had originally obtained the decree, but only became a party to the suit as assignee of the Mussamat and for the purpose of executing the decree. This being so, the present suit cannot lie. It is forbidden by the express words of s. 11, Act XXIII of 1861. On this ground we think that it ought to be dismissed. But as this objection was not put forward in the first Court, or in the second Court, nor was indeed anywhere raised by any of the parties, we think that each party must bear his own costs.
4. We will add further that it seems to us that the course which the Munsif has taken on the application of Rughu Nundun for the execution of the Mussamat''s decree, has not been a well-considered course, or altogether conformable to the provisions of the Civil Procedure Code. When Rughu Nundun came to the Munsif''s Court, and asked under s. 208 to be allowed to execute the Mussamat''s decree, because he had obtained an assignment of that decree from her for valuable consideration, the Munsif ought to have given notice of that application to the present plaintiffs. And upon the present plaintiffs showing, in answer to that application, that they had a decree in the Subordinate Judge''s Court against the Mussamat to a higher amount than her decree against them, the Munsif ought not to have considered it proper to grant the application of Rughu Nundun; he ought not under such circumstances as those to have placed any unnecessary element of complication between the present plaintiffs and Mussamat Basgitta.
5. The situation of the parties at that time seems to have been as follows:--The debt under the decree of the Munsif''s Court, in favor of Mussamat Basgitta, had been attached by the plaintiffs in execution of their decree against Mussamat Basgitta in the Subordinate Judge''s Court. Now the effect of an attachment of a debt is to prohibit the debtor from paying it to the creditor, and the creditor from receiving it; and also to found authority in the attaching Court either to sell it, or to appoint a manager to sue for the realization of it. In the case of a judgment-debt, whichever of these alternatives is followed by the attaching Court, the vendee in the one, and the manager in the other, is entitled to claim execution of the attached decree. Moreover, the attachment of a decree-debt, although probably it does not of itself prevent the Court, in which the decree is, from enforcing the execution of it as against the debtor, still obliges that Court, under s. 237 of the Civil Procedure Code, to hold the money which may arise from its execution until the further order of the attaching Court; and perhaps, in the ultimate event, to consider and determine conflicting claims to it.
6. At the time, therefore, when Rughu Nundun applied to be allowed, as the Mussamat''s assignee, to execute her decree against the plaintiffs, the Munsif knew that he could not lawfully execute that decree as it stood, and pay over the proceeds thereof to the Mussamat herself, until he should obtain authority so to do from the attaching Court, that is, from the Subordinate Judge; and consequently in the absence of such authority, he ought not to have taken the step of in effect altering the decree by the substitution of Rughu Nundun for the Mussamat, allowing process of execution to issue in his name, which step would almost certainly lead to Rughu Nundun realizing the amount of the attached decree without the attaching creditor being heard in the matter. He ought under these circumstances to have refrained from granting Rughu Nundun''s application under s. 208, and have left him to his remedy against his assignor.
7. But even if he did think it right and proper to allow Rughu Nundun, by virtue of his assignment, to stand in the shoes of the Mussamat for the purpose of executing this decree, he ought even then to have given reasonable effect to the application of the present plaintiffs to have the benefit of their decree in the Subordinate Judge''s Court in the shape of a set-off. It is true that s. 209 only applies to cases in which the two decrees are, or have in some mode come to be, as it were, decrees of the same Court, still the Munsif might reasonably have stayed proceedings for a time sufficient to enable the plaintiffs to get a transfer of their decree from the Subordinate Judge''s Court to his own Court for execution, if the facts admitted of such transfer; or in the alternative to enable the attaching creditors (i.e., the present plaintiffs) to prefer a claim to the proceeds of the attached decree in priority to Rughu Nundun, and to enable this claim to be heard and determined under s. 237 before the money was actually levied. This has not yet been done. The question whether or not the attaching creditor is entitled to the proceeds of the attached decree, supposing it realized, in preference to the judgment-debtors'' assignee, notwithstanding that he gave consideration for the assignment, has not yet been entertained and tried; and it obviously ought to be tried before process of execution is issued in favor of Rughu Nundun, because if it is determined in the affirmative, the process ought not to be issued. It would be absurd to levy from the present plaintiffs money, which, when levied, must be paid over to them again. And it seems clear that if, at the time when Mussamat Basgitta made her assignment to Rughu Nundun, the present plaintiffs, or their predecessor, could have effectually pleaded set-off in a suit brought by her against them to recover the amount of her debt (had such a suit been then brought), Rughu Nundun, her assignee, cannot be in a better position; and therefore he must fail on the trial of the question raised under s. 237, which is in effect only a summary suit for the same purpose.
8. We do not of course intend to say that there can be no circumstances under which it is not right for a Court to execute a decree between the parties while a counter-decree exists between the same parties in another Court. We confine our observations entirely to the facts of the present case.
9. The decree of the lower Appellate Court is reversed, and the plaintiffs'' suit is dismissed for want of jurisdiction. And each party will bear their own costs in all the Courts. It need hardly be stated that the present decree will not put any obstacle in the way of the parties applying to the Munsif''s Court for a review of the order which he has already made.
