Murli Dhar vs Parsotam Das and Another

Turner, J.—The opinion of the Full Bench ILR 1978 All 668 established that an appeal lies in this case, the order being the final order in a judicial proceeding, and therefore a decree as defined in Section 2.

Sarju Prasad was competent to sell his title to the costs which he anticipated he would recover, and there can be no objection to the validity of the substitution of the names of the respondents for that of Sarju Prasad. Of course, the respondents took the decree for costs subject to any equities which may have subsisted between the decree-holder and the judgment-debtor (see Section 233 of Act X of 1877). The appellant then was entitled to set off so much of any valid and subsisting decree held by him against Sarju Prasad as might amount to the decree purchased by the respondents (see Section 246 of Act X of 1877, Explanation ii). The lower Court must determine whether, as alleged by the appellant, he held a decree of which he was entitled to set off a portion of the amount against the decree acquired by the respondents, so as to satisfy the decree held by respondents. The lower Court will try this issue and return its finding to this Court, when ten days will be allowed for objections.

From the finding of the lower Court it appeared that the decree held by Murli Dhar was one for money against Sarju Prasad alone, made by the Subordinate Judge of Benares, which had been transferred to the Court of the Subordinate Judge of Azamgarh for execution. On the return of the finding the following Judgment was delivered by the High Court (Pearson, J. and Turnbb, J.):

Turner, J.

The Court below has found that the decree in which the respondents purchased the interests of Sarju Prasad was a decree for costs held by Sarju Prasad and two other persons without any specification of the separate interests of each. We are compelled to hold then that the decree is not a decree between the same parties as the parties to the decree held by the appellant, inasmuch as in the latter decree Sarju Prasad is the sole judgment-debtor. We must consequently dismiss the appeal, but we order each party to bear his own costs.