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Brij Mohan Lal and anr. Vs. L. Monmohan Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All351
AppellantBrij Mohan Lal and anr.
RespondentL. Monmohan Das
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under..........pendency of the proceedings in the lower court. in this judgment we shall consider the rights of shiam sunder as if he is still alive. it appears that one, govind prasad obtained a decree against baldeo narain and mata prasad for a certain sum of money in 1925. baldeo narain obtained a decree for a certain sum of money against man mohan das and three others in 1926. on 25th january 1927, govind prasad assigned his rights to man mohann das. on 15th december 1932, baldeo narain assigned his rights to shiam sunder. the latter applied for execution of his decree against his judgment-debtors including man mohan das. man mohan das claimed a set-off of the decretal amount due under the decree assigned to him by govind prasad against the decretal amount claimed by shiam sunder. the lower court.....
Judgment:

1. This appeal arises out of execution proceedings. The appellants are the legal representatives of Shiam Sunder who died during the pendency of the proceedings in the lower Court. In this judgment we shall consider the rights of Shiam Sunder as if he is still alive. It appears that one, Govind Prasad obtained a decree against Baldeo Narain and Mata Prasad for a certain sum of money in 1925. Baldeo Narain obtained a decree for a certain sum of money against Man Mohan Das and three others in 1926. On 25th January 1927, Govind Prasad assigned his rights to Man Mohann Das. On 15th December 1932, Baldeo Narain assigned his rights to Shiam Sunder. The latter applied for execution of his decree against his judgment-debtors including Man Mohan Das. Man Mohan Das claimed a set-off of the decretal amount due under the decree assigned to him by Govind Prasad against the decretal amount claimed by Shiam Sunder. The lower Court allowed such set-off. The legal representatives of Shiam Sunder have preferred the present appeal impugning the correctness of the order of the lower Court. At the first sight it may seem that Shiam Sunder not being one of the judgment-debtors of Man Mohan Das the assignee of Govind Prasad's decree, any set-off which may be allowed at the instance of Man Mohan Das would be inequitable. On a correct application, however, of Order 21, Rule 18, and Section 49, Civil P.C., the rights of the parties are adjustable by a set-off.

2. There can be no doubt that before Shiam Sunder came on the scene there was a decree which Man Mohan Das could execute against Baldeo Narain. There was another decree which Baldeo Narain could execute against Man Mohan Das. The judgment-debtors in both the decrees were jointly and severally liable, so that every one of them was liable to pay the entire decretal amount. If Shiam Sunder had taken no assignment of the decree in favour of Baldeo Narain there could be no doubt that a set-off of the nature contemplated by Order 21, Rule 18, would have been allowed. For nearly five years Man Mohan Das had the right to claim a set-off against Baldeo Narain whenever the latter might attempt to put his own decree in execution against Man Mohan Das. The question is whether Man Mohan Das' position was affected by Baldeo Narain transferring his rights to Shiam Sunder on 15th December 1932. The answer is supplied by Section 49, Civil P.C., which provides that every transferee of a decree shall hold the same subject to the equities if any, which the judgment-debtors might enforce against the original decree, holder. There can be no doubt that Man Mohan Das had an equity enforceable against Baldeo Narain. The assignment by the latter of his own decree would, having regard to the provisions of Section 49, affect such equity, in favour of Man Mohan Das. In our opinion there is no inconsistency between Order 21, Rule 18, Civil P.C., and Section 49, but if there be any, Section 49 will prevail. If Shiam Sunder had any grievance in consequence of the equity in favour of Man Mohan Das being enforced against him, he has his remedy against his assignor, but the equity in favour of Man Mohan Das which as already stated existed for five, years cannot be extinguished by the assignment in favour of Shiam Sunder. For these reasons we hold that the order passed by the lower Court is right. The appeal is accordingly dismissed with costs.


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