Hira Lal Singh and Another vs Ramjiram

Edward Chamier, C.J.—The respondent held decrees for; rent amounting to Rs. 2,000 against his tenant Tipan Prasad Singh. The Iatter, who held a decree against the respondent for Rs. 11,123 on account of mesne profits, sold it to the appellants who applied for execution by sale of some property the respondent. The Court has held that the amount due on the decree held by the respondent should be set off against the amount due on the decree held by the appellants and that the latter should be allowed to execute their decree for the balance only. Hence this appeal.

The appellants are, prima facie, bound to allow the set off, but they contend the set off should pot be allowed much as the respondent has not applied for execution of his decrees. Order XXI, Rule 18, no doubt contemplates that decrees on both sides are before Court for execution, i.e., that both shall have taken out execution. But the circumstances of the present case are peauliar. The High Court when affirming one of the decrees for rent, said that execution should not issue until the amount of mesne profits due under the decree in favour of the appellants had been ascertained. Evidently the intention was that the decrees should he set off against each other. If the Court below had ruled a set off could not be allowed inasmuch the respondent had not taken out execution, the respondent would have taken out execution at once. In consequence of the decision of the Court below the respondent has not taken out execution. It is quite clear that the decrees held by the parties should be set off against each other as far as possible and all parties understood that this would be done. In these circumstances we dismiss this appeal but we make no as to costs.

Sharfuddin J.

I agree.