1. This is a revision petition filed against the order of subordinate Judge, Warangal given on 23rd June 1966 whereby the learned Subordinate Judge dismissed the petition filed by the petitioner before me under Section 23 of the Specific Relief Act.
2. The material facts are that decree for specific performance was passed on 14-2- 1965 in O. S. No. 55 of 1965 in favour of the respondent and against the petitioner before me in the following terms: -
'The defendant should execute and register the sale deed in respect of the suit property in plaintiff's favour on payment of Rs. 1100 by the plaintiff within 3 months from this date. IN default the plaintiff will be entitled to set the sale deed executed through Court by depositing the balance of sale consideration and registration expenses. The defendant shall bear the costs of the suit incurred by the plaintiff.'
3. The petitioner, who was the defendant in the suit, filed an application under Section 151 C. P. C. alleging inter alia that since the plaintiff has not deposited the amount specified in the decree within three months as the decree directed, the decree should be rescinded.
4. In his counter, the decree-holder-respondent stated that he had already filed E. P. No. 10 of 1966 asking the Court to enter satisfaction upon the decree for Rs. 1100 to be paid by him to the judgment-debtor towards the balance of consideration and for executing the decree for the balance of Rs. 739-65p, recoverable by him towards the costs awarded. It was in these circumstances he contended that there was no question of depositing the sale consideration in the Court with three months. The judgment-debtor himself was bound to pay to the respondent a higher amount by way of costs under the decree.
5. The learned subordinate Judge accepted the contention of the decree-holder and dismissed the petition filed by the judgment-debtor, It is this view that is now questioned in this revision-petition.
6. It is no doubt true that the judgment-debtor had filed the application in the Court below under Section 151 C. P. C. but the provision applicable to such a petition is section 28 of the specific relief Act which runs as follows:
'(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the does not, within the period allowed by the decree or such further time as the Court may allow, pay the purchases money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made to have the contract rescind and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.
I am not concerned with the other sub-sections in this case. It is under this provision that it was contended in the application filed by the judgment-debtor in the Court below that since the decree-holder has failed to deposit the amount as directed by the decree with three months, which amount was the consideration for the sale, the judgment-debtor in entitled to get the contract rescinded. The contention of the decree-holder on the other hand was that he could be deemed to have deposited the amount because he made his intention clear by filing execution petition that he has set off the amount which he had to pay under the decree to the judgment-debtor towards consideration for the sale against the amount of costs which is larger than the amount of consideration of sale which he is entitled under the decree to get from the judgment-debtor. Section 28 in those circumstances cannot be invoked by the judgment-debtor.
7. The short question therefor for my consideration is as to whether the decree-holder was justified in setting off the amount of sale consideration which he was directed to deposit in the Court within three months from the date of the decree against the larger amount of costs which he had to recover from the judgment-debtor.
8. Now, under order XXI Rune 19 C. P. C. 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 -
(a) if the two sums are equal satisfaction for both shall be entered upon the decree and under Cl. (b), if the two sums are unequal, execution can 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.
9. A careful reading of this Rule would indicate that it provides for a set off in the case of cross claims contained in the same decree. The principle underlying the provision is to prevent each side taking out execution in respect of sums due under the same decree. Although at one time the Allahabad High Court had held a view that a set off could not be ordered unless the parties had identical rights of execution in respect of their claims, it is not firmly settled that a set off under Rule 19 of Order XXI C. P. C. can be ordered even though the remedy of each party against the other is not precisely of the same character. Thus costs awarded can be set off against the purchase money which the venders is directed to deposit within a specified time in a decree for specific time in a decree for specific performance or vice versa.
10. In Chinnammal v. Chidambara AIR 1936 Mad 626 a decree was passed by the Court which provided that on the plaintiff's depositing into Court a certain sum within a fixed time, the defendant was to execute a deed of conveyance in plaintiff's favour, and further that the defendant was to pay the plaintiff a certain amount by way of costs. The plaintiff deposited a sum of money after deducting the amount of costs payable to him under the decree and also able to him under the decree and also other sums claimable by way of restitution and interest thereon. The learned Judge held that the claims were in the nature of cross demands arising out of the same transaction and the doctrine of equitable set off allowed by the Courts of equity held good and hence the plaintiff deposited the proper amount in Court. Following the principles laid down in this case. the Bombay High Court held in Ganpati v. Nilkanth : AIR1954Bom335 :
'(i) Apart from the language of Order 21 Rule 19 (b), the plaintiffs were entitled to deduct Rs. 1469-6-3 from the sum of Rs. 2, 172 and 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.
(ii) If the defendant was entitled to a sum of Rs. 2,172 from the plaintiffs, the plaintiffs had a claim against the defendant to the extent of Rs. 469-6-3 and the plaintiffs were entitled to rely upon Order 21 Rule 19(b).
But even in a case where the 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, O. 21 R. 19(b) may apply.'
11. It will thus be clear that whether the set off is taken to fall under Order XXI Rule 19(b) C. P. C. or is permitted on general principles of equity and in exercise of the inherent power of the executing court, in either case, the decree holder was justified in claiming a set off. In these circumstances, it cannot validly be contended that the decree-holder had failed to deposit the amount within three months from the date of the decree as was directed by the decree. Section 28 of the Specific Relief Act therefore cannot be successfully invoked by the judgment-debtor in such a case. I am therefore satisfied that the judgment of the Court below does not suffer any infirmity which calls for interference at the hands of this Court.
12. The revision petition therefore is dismissed with costs.
13. Revision dismissed.