Sidheshwar Prasad Singh vs Sonu Lal and Others

Manohar Lall, J.—This is an appeal by the decree-holder, who is aggrieved by the decision of the learned District Judge of Gaya, dated 18th July 1941, by which he has allowed the set-off of a cross-decree in the following circumstances.

The appellant obtained a decree for Rs. 2147-10-6 against Sonu Lal, Mahabir and Ramchandra. He was dissatisfied with this decree, and, therefore, has appealed against a portion of the claim which has been disallowed, but nevertheless he has proceeded to execute the decree so far as it stands unchallenged by the judgment-debtors. In Suit No. 272 of 1938, the three judgment-debtors named above, together with four sons of two of these judgment-debtors, obtained a decree for payment of Rs. 15,915 against the appellant. The appellant preferred an appeal to this Court on 22nd October 1940, and that it numbered as First Appeal No. 195 of that year. In the meantime the respondent, that is to say the decree-holder, in Rs. 15,915 decree also put his decree into execution and claimed that the decree of Rs. 2147-10-6 should be set-off in part against the larger decree. The learned Subordinate Judge disallowed the application under Order 21, Rule 18, Civil P.C., upon the ground that the parties were not the same and that it was unknown whether the four sons of the decree-holders were joint or separate with their fathers, and further that they have not their say in the present dispute and therefore it was unknown whether they would repudiate or not the decree under execution or would admit its liability. He also pointed out that the execution of the decree of the judgment-debtors, namely Rs. 15,915 decree has been stayed on certain condition by the High Court. Accordingly he refused to allow the set-off.

Against this decision there was an appeal to the learned District Judge before whom the respondents took the precaution of putting in an application on behalf of the four sons that they had no objection if the set-off was allowed. The only question before the learned District Judge was therefore whether the set-off should be allowed in view of the fact that execution of the larger decree had been stayed, in other words, whether the decree was or was not capable of execution within the meaning of Order 21, Rule 18, Civil P.C. The learned District Judge took the view that the decree was capable of execution notwithstanding its having been stayed by the order of this Court and accordingly he allowed the setoff which was claimed by the respondents. Hence the appeal to this Court.

It was argued in the first instance by the learned advocate for the appellant that inasmuch as the respondents had withdrawn their appeal u/s 47 which related to the disposal of an objection to attachment, no appeal was maintainable before the learned District Judge from an order refusing to allow set-off under Order 21, Rule 18, Civil P.C. But as was pointed out by my Lord the Chief Justice in the course of the argument if the language of Order 21, Rule 18 is kept in view it is obvious that the question whether the decree-holder is entitled to a set-off or not of a cross-decree is a question relating to the satisfaction of a decree. For instance, Sub-clause (a) of Sub-section (1) says that if the two sums, that is to say two sums in the decrees sought to be set-off one against the other are equal, satisfaction shall be entered upon both decrees. Again Sub-clause (b) says that "if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum."

It seems to me therefore clear from a mere perusal of these two sub-clauses that the question of setoff ultimately resolves itself into the question of satisfaction of a decree and also to the extent to which the larger decree may be allowed to be executed. I therefore overrule this contention and hold that the learned District Judge had jurisdiction to entertain the appeal, because the question of set-off under Order 21, Rule 18 is a question relating to execution or satisfaction of a decree within the meaning of Section 47, Civil P.C.

It was then argued that the learned District Judge was in error in thinking that the decree was capable of execution when upon the facts found by him the execution of the decree had been stayed by an order of this Court. We have referred to the original records of First Appeal No. 195 of 1940 and Miscellaneous Appeal No. 146 of 1941 and are satisfied that the execution of the decree for Rs. 15,915 has been stayed in the First Appeal No. 195 of 1940 itself. On 25th October 1940, an application for stay of this decree was made on behalf of the appellants and the order of the learned Registrar on that date was:

Let this application be kept pending until an application for stay is made in the lower Court under Order 41, Rule 6.

Thereafter, on 5th May 1941, the learned advocate for the appellant prayed that the stay application be put up on 6th May 1941, because it appeared that a stay application in Miscellaneous Appeal No. 146 of 1941, which was moved on 22nd April 1941, also came up for hearing between the same parties. The application for stay was disposed of by the learned Registrar on 7th May 1941, and by that order he came to the conclusion that this was a case in which stay of sale should be granted upon certain terms and fixed a day for the peremptory hearing of the appeal. From a narration of these facts, we are satisfied that the execution of the decree for Rs. 15,915 has been stayed temporarily by the order of the learned Registrar. It was argued that the stay has been granted till such time as the Miscellaneous Appeal from the valuation matter is not disposed of. But the order of the learned Registrar in the main appeal and the Miscellaneous Appeal is clear that he was for the moment granting a stay of execution of the decree in the main appeal till such time as the Miscellaneous Appeal is disposed of, and thereafter the appellant in -the First Appeal No. 195 of 1940 always has liberty to ask that stay should be prolonged if satisfactory reasons are given by him. But be that as it may it is clear that on the date when the learned Subordinate Judge took up this matter and when the learned District Judge disposed of the appeal, and to-day the execution of the decree for Rs. 15,915, has been stayed. If this is so, it must be held that the decree for Rs. 15,915 is not capable of execution. Accordingly, one of the principal elements of Order 21, Rule 18 is missing. For these reasons the order of the learned District Judge is erroneous and must be set aside and the order of the learned Subordinate Judge restored.

It was argued that the respondents will suffer some hardship when they find that they will have to pay up the amount due under the decree for Rs. 2147 while they hold a larger decree for rupees 15,915. The obvious answer to this contention is that it is impossible to say, after the stay order, whether the decree for Rs. 15,915 still remains a decree capable of execution for that amount or will be allowed ultimately to be executed for that amount. That question depends upon the decision of the First Appeal No. 195 of 1940 or upon the subsequent order which may be passed by the learned Registrar withdrawing the stay order. But so long as the stay order stands, it is impossible for this Court to listen to any argument of hardship. We are bound to give effect to the clear clauses of the statute. If the elements of Order 21, Rule 18, are not satisfied the decree-holder is not entitled to any setoff. Parties must be relegated to their rights under the law. Each party will bear his own costs in this Court and in the lower appellate Court.

Harries, C.J.

I agree.