Skip to content


Ganpati Timmanna Vs. Nilkanth Sadashiv and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1313 of 1952
Judge
Reported inAIR1954Bom335; (1954)56BOMLR211; ILR1954Bom678
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 19
AppellantGanpati Timmanna
RespondentNilkanth Sadashiv and ors.
Appellant AdvocateK.G. Datar, Adv.
Respondent AdvocateG.N. Vaidya, Adv.
Excerpt:
.....b to receive rs. 1702 after deducting plaintiff's claim and not entire amount in his favour. - - he says that it may well be that the respondents are entitled to recover from the appellant a sum of rs. 2,172. apart from the language of order 21, rule 19(b), i am satisfied that the plaintiffs are entitled to deduct rs. if that is so, order 21, rule 19 (b), clearly..........rs. 2,500 already deposited by the plaintiffs in the court. the defendant do execute the necessary sale-deed in respect of the suit property in favour of the plaintiffs. if the defendant fails to execute the sale deed, as aforesaid, the plaintiffs should get the said deed executed by the court on behalf of the defendant. the cost of the execution of the said sale-deed be borne by the plaintiffs alone.'3. this decree was challenged in a first appeal and also in a second appeal, but in the two superior courts the trial court's decree' was confirmed.4. the position then was that under the terms of the decree the defendant was entitled to be paid to him a sum of rs. 2,172 and the plaintiffs were entitled to recover from the defendant a sum of rs. 469-6-3 by way of costs in all the courts.5......
Judgment:

1. This is a second appeal in execution which raises a short question which is whether the respondents are entitled to deduct a sum of Rs. 469-6-3 from out of the amount of Rs. 2,172 ;paid into Court by them. The circumstances giving rise to the execution application out of which .the appeal arises are these.

2. On 16 June 1947, the respondents filed against the appellant a suit for specific performance of a contract. While the suit was pending, the respondents paid into Court a sum of Rs. 2,500.

The suit was eventually decreed on 22 September 1948, and the material terms of the decree were as follows:

'The plaintiffs do pay to the defendant Rs. 2,172 (two thousand one hundred and seventy-two), that is to say, the said amount is to be paid to the defendant out of the amount of Rs. 2,500 already deposited by the plaintiffs in the Court. The defendant do execute the necessary sale-deed in respect of the suit property in favour of the plaintiffs. If the defendant fails to execute the sale deed, as aforesaid, the plaintiffs should get the said deed executed by the Court on behalf of the defendant. The cost of the execution of the said sale-deed be borne by the plaintiffs alone.'

3. This decree was challenged in a first appeal and also in a second appeal, but in the two superior Courts the trial Court's decree' was confirmed.

4. The position then was that under the terms of the decree the defendant was entitled to be paid to him a sum of Rs. 2,172 and the plaintiffs were entitled to recover from the defendant a sum of Rs. 469-6-3 by way of costs in all the Courts.

5. In 1950 the respondents filed an execution application asking that the sale deed be passed in their favour. It appears that after the trial Court's decree the plaintiffs withdrew a sum of Rs. 828 from out of the sum of Rs. 2,500 paid into Court, thus leaving a sum of Rs. 2.172 which wasthe amount payable to the defendant under the decree. The plaintiffs also deducted the sum ofRS. 469-6-3 which were allowed to them under thethree decrees, thus leaving a balance of Rs. 1,702-9-9 in the Court as payable to the defendant.

6. The defendant objected to the execution, contending that the plaintiffs did not comply with the term of the decree which was that the plaintiffs were to pay to the defendant a sum of Rs. 2,172, and since the plaintiffs did not pay the aforesaid amount, the plaintiffs were not entitled to execute the decree. The trial Court accepted the contention of the appellant and ordered the darkhast to be struck off.

In the result, the respondents' darkhast was dismissed. From that order the respondents went in appeal before the District Court of Kanara at Karwar and the learned District Judge allowed their appeal, set aside the order of the executing Court and sent the case papers back to the executing Court for proceeding with the darkhast in accordance with law. From the appellate decree the defendant has come up in second appeal.

7. Upon this appeal, Mr. K. G. Datar for the appellant relies upon Order 21 Rule 19, Civil P. C. So far as material, Order 21 Rule 19, provides:

'Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then.....

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.'

It is not disputed by Mr. Datar that while the defendant is entitled to a sum of Rs. 2,172, the plaintiffs are entitled to recover from him a sum of Rs. 469-6-3. But his contention is that the present case does not fall within Order 21, Rule 19 (b), and plaintiffs may file a separate proceeding to recover the amount. He says that it may well be that the respondents are entitled to recover from the appellant a sum of Rs. 469-6-3, but the appellant is entitled to recover from the respondents a sum of Rs. 2,172 and the decree is a decree for specific performance and in such a case the defendant is liable to execute a sale deed in favour of the plaintiffs upon the plaintiffs paying the defendant the sum of Rs. 2,172.

Now, in this case the plaintiffs had already produced in Court a sum of Rs. 2,500, while the suit was pending. The decree in favour of the defendant was a decree for a sum of Rs. 2,172. Apart from the language of Order 21, Rule 19(b), I am satisfied that the plaintiffs are entitled to deduct Rs. 469-6-3 from the sum of Rs. 2,172. The decree reproduced already shows that the plaintiffs were to pay to the defendant Rs. 2,172. That means that the defendant was entitled to execute this decree as against the plaintiffs for a sum of Rs. 2,172.

Upon the language of the decree, therefore. It is obvious that the defendant could have executed this decree as against the plaintiffs. The decree doss not provide that upon the plaintiffs pacing the defendant a sum of Rs. 2,172, the defendant was to execute a sale-deed in favour of the plaintiffs. If that was the language of the decree, there would have been some force in the contention raised by Mr. Datar, but upon the language of the decree, I see no possible objection to the defendant executing the decree as against the plaintiffs for a sum of Rs. 2,172, and there seems to be equally no objection to the plaintiffs executing the decree as against the defendant asking for the excution of a sale deed.

But even if Mr. Datar were right upon the terpretation of Order 21, Rule 19 (b), it seems to me that there is no force in that contention. If the defendant was entitled to a sum of Rs. 2,172 from the plaintiffs, the plaintiffs had a claim 9 gainst the defendant to the extent of Rs. 469-6-8, and I do not see why the plaintiffs should not be entitled to rely upon Order 21, Rule 19 (b) Here, an application is made to the Court for the execution of a decree, and on the language of the decree, two parties are entitled to recover sums of money from each owner. If that is so, Order 21, Rule 19 (b), clearly applies.

But even in a case where a decree is worded in a different language, i.e., where the decree provides that upon the plaintiff paying the defendant a stated sum of money, the defendant shall execute a sale deed in favour of the plaintiff, in such a case also Order 21, Rule 19 (b), may apply. That was the view taken in a Madras case reported in -- 'Chinnammal v. Chidambara Kothanar AIR 1936 Mad 626 (A). That case followed a decision of the Allahabad High Court in - 'Ishri v. Gopal Saran', 6 All 351 (B). After referring to the Allahabad case, this is what is stated at p. 627:

'..... .Mahniood J. points out very forcibly that when under the same decree both the plaintiff's right and the defendant's liability are declared, It would be idle to drive the former to a separate proceeding to recover the costs.'

8. In my opinion, that is the correct principle. There is also a later decision of the Madras High Court reported in -- 'Narasamma v. Venkateswara Rao', AIR 1943 Mad 667 (C) which follows -- 'Chin-nammal's case (A)'. In my opinion, therefore, the respondents were entitled to rely upon Order 21, Rue 19 (b), the Code of Civil Procedure, and apart from Order 21, Rule 19 (b), the respondents were also entitled to rely upon the language o this decree and to say that the defendant was bound to execute a sale deed in favour of the plaintiffs upon receiving Rs. 1,702-9-9 after deducting Rs. 469-6-3 from the sum of Rs. 2,172.

9. For the aforesaid reasons, the appellate derision is right. The appeal, therefore, fails and the same will be dismissed with costs.

10. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //