1. This is a plaintiff's appeal against the order of a learned single Judge of this Court. The appeal arises out of a pre-emption suit. On 22nd May 1932, the plaintiff's suit was decreed. The plaintiff in the decree was directed to deposit within one month the sum of Rs. 2150, and Rs. 186-4-0 in name of costs which were awarded to him under the decree. On 20th June 1932, the plaintiff deposited Rs. 2150. On 1st July 1932 he applied for possession and ho further prayed that he might be permitted to realize the amount awarded to him in name of costs by attaching the sum deposited. The defendant appealed against the order of the trial Court. The appeal was decided on 11th November 1933. The Appellate Court decreed the plaintiff's suit conditionally upon his depositing a sum of Rs. 2650 within three months. The Court further awarded the plaintiff Rs. 169-10-0 and to the defendant Rs. 92-7-0 in name of costs. The decree did not comply strictly with the provisions of Order 20, Rule 14, Civil P.C., in respect that the plaintiff was not directed to deposit the costs awarded against him.
2. On 9th February 1934 the sum of Rs. 330-6-0 was deposited by the plaintiff, that is Rs. 500 less the sum of Rs. 169-10-0 awarded to the plaintiff as costs. The plaintiff did not allow for the award of costs made in favour of the defendant. In these circumstances on 10th March 1934 the defendant preferred an application in the execution Court claiming that inasmuch as the plaintiff had not deposited the full Rs. 500 within the time allowed by the Court the suit should stand dismissed. She further claimed possession over the property in dispute and mesne profits. The execution Court and the lower Appellate Court held that the plaintiff had complied with the terms of the decree passed by the lower Appellate Court and dismissed the defendant's application to have the suit dismissed and claims for possession and mesne profits. The learned Single Judge, before whom the matter came in second appeal, has reversed the order of the lower Appel. late Court and has remanded the case to the Court of first instance to be disposed of according to law. The question for consideration in this appeal is whether in law the plaintiff must be taken to have complied with the terms of the decree of 11th November 1933.
3. Now, by the terms of that decree the plaintiff was directed to deposit within three months the sum of Rs. 500. This admittedly he did not do. On the other hand it is well established law that in a pre-emption suit the plaintiff is entitled to deduct from the amount he is directed to deposit, the amount of the costs awarded to him. This principle was first approved by this Court in Ishri v. Gopal Saran (1884) 6 All. 351. That decision has been subsequently followed in Ram Lagan Pande v. Mohammad Ishaq khan (1919) 6 A.I.R. All. 45 and Ali Hussain v. Amin Ullah (1912) 34 All. 596. Learned Counsel in these circumstances contended that as the law stood in the year 1933 the plaintiff had fully complied with the terms of the decree of 11th November 1933, in regard to the amount to be deposited. It was contended by learned Counsel for the respondent on the other hand that if in equity the plaintiff was entitled to deduct from the amount directed to be deposited, the amount of costs awarded to him he should in equity have included in the amount deposited the amount of costs awarded to the respondent. In other words that in arriving at the amount which the plaintiff was bound to deposit the respondent should have been credited with the sum of Rs. 92-7-0. Learned Counsel for the respondent in support of his contention referred to the provisions of Order 21, Rule 19, Sub-rule (b). In a sense this provision supports the argument for the respondent. On the other hand, in our opinion, it is not strictly applicable. The provision refers not to deposits in preemption suits but to set off in the case of a decree in execution in regard to which different considerations arise.
4. No doubt the plaintiff would have acted reasonably and equitably if in making the deposit he had allowed for the sum awarded to the respondent in name of costs. Upon the other hand it cannot be said that he failed to comply with the terms of the decree which was of 11th November 1933. lie clearly in law was entitled to deduct the amount of the costs awarded to him, namely Rs. 169-10-0. He was not bound to give credit to the respondent for the sum of Rs. 92-7-0 awarded to the latter. It was open to the respondent to put the decree in the suit, in so far as it related to her costs, into execution. No difficulty was placed in the way of the respondent pursuing her remedy in this ordinary way. If the plaintiff has failed to act in a way which the Courts would consider reasonable and equitable, though not directed so to act by the terms of the decree, is he to be deprived of the fruits of his victory in the pre-emption suit on grounds of equity? We think not. It is one thing to hold that the plaintiff is entitled to deduct from the sum to be deposited under the pre-emption decree the amount of his costs on the ground that Israeli a course is reasonable and equitable; it is an entirely different matter to hold that a plaintiff who has succeeded in a preemption suit and is willing and able to deposit what the Court directs him to deposit, is to fail in the end of the day because ho has not added to the amount directed to be deposited the sum awarded to the defendant in name of costs, when the decree in the suit has not so directed. Such a result in our judgment could not be justified on grounds of equity. It was open to the Court in view of the terms of Order 20, Rule 14 to have directed the plaintiff to deposit the defendant's costs. No doubt the Court should have done so in the circumstances. It did riot however so order, and the plaintiff in fact did comply with the order passed. Upon the whole matter we are satisfied that the defendant's objection should be dismissed. We accordingly allow the appeal, set aside the order of the learned Single Judge in second appeal, and restore the order of the lower Appellate Court with costs throughout.