1. This is a defendant's second appeal against concurrent judgments of the Courts below dismissing the defendant's application under Section 144, Civil P.C. The plaintiff-respondent brought a suit in the Court of the City Munsif of Benares for pre emption of a house in that city and on 22nd May 1932 the learned Munsif decreed the suit. The operative portion of the order reads as follows:
Plaintiff's suit is decreed with costs on payment of Rs. 2,150 within a month. In case of non-payment the suit would stand dismissed with costs.
2. The amount of the costs awarded to the successful plaintiff by this decree came to Rs. 186.4.0. The plaintiff deposited the sum of Rs. 2150 in Court on 20th June 1932 and on 1st July 1932 he applied for execution of the decree praying for delivery of possession over the house and for the realization of the costs by attachment out of the sum of Rs. 2,150 which he had deposited in Court. In the meanwhile the defendant, the vendee, preferred an appeal against the pre-emption decree and on 11th November 1933 this appeal was heard and determined and the decree of the Court of first instance modified both as to the amount to be deposited and as to the costs. Under the decree of the lower Appellate Court the plaintiff was directed to deposit a sum of Rs. 2,650 instead of Rs. 2,150 and he was awarded a sum of Rs. 169-10-0 as costs in both Courts due to him from the defendant, whereas the defendant was awarded a sum of Rs. 92-7-0 as coats in both Courts due to him from the plaintiff. The plaintiff was given a period of three months to deposit the additional sum required by this decree.
3. On 9th February 1934 the plaintiff deposited a sum of Rs. 330-6-0 in Court and claimed that this sum was sufficient to satisfy the terms of the Appellate Court decree. It will be observed that the Appellate Court had directed that the plaintiff should deposit a sum of Rs. 500 in excess of the sum directed by the learned Munsif. The plaintiff did not deposit the full sum of Rs. 500 but deposited the said sum of Rs. 330-6-0 which is the difference between Rs. 500 and Rs. 169-10-0 which was the amount of costs awarded to him by the lower Appellate Court.
4. On 10th March 1934 the defendant made an application claiming that inasmuch as the plaintiff had not deposited the full sum of Rs. 500 within the time allowed by the Court, the suit should stand dismissed and further claimed possession over the house together with mesne pro. fits. Both the lower Courts have come to the conclusion that the additional amount deposited by the plaintiff, namely Rupees 330-6.0, was in strict compliance with the decree of the lower Appellate Court and consequently they have held that the defendant is not entitled to have the suit dismissed and to obtain possession over the property and mesne profits.
5. It is now well established that a pre-emptor can deduct the costs awarded to him from the sum which he is directed to deposit in Court. Where, for example, a preemptor is directed to deposit a sum of Rs. 10,000 in Court and is awarded costs amounting to Rs. 500 against the vendee, then a deposit of Rs. 9,500 in Court is in compliance with the decree. This principle has been constantly followed in this Court since the decision in Ishri v. Gopal Saran (1884) 6 All. 351. Later cases in which this principle has been followed are the cases in Ram Lagan Pande v. Mohammad Ishaq Khan A.I.R. 1919 All. 45 and Ali Husain v. Amin Ullah (1912) 34 All. 596. It is to be observed that the Civil Procedure Code does not expressly permit a pre-emptor to deduct the amount of costs awarded to him from the sum which he is directed to deposit in Court. In Ishri v. Gopal Saran (1884) 6 All. 351, which is the first case dealing with the matter, a Bench of this Court consisting of Straight and Mahmood, JJ. were of opinion that equity demanded that a pre-emptor should be entitled to deduct costs award to him from the sum which he had been directed to deposit in Court for the vendee. Mahmood, J. who delivered the judgment in the case points out that it would be absurd to direct a pre-emptor to deposit the whole sum and to permit the vendee to take such sum and then compel the pre-emptor to recover his costs as best he may from the vendee by execution or otherwise.
6. No case has been cited to me where costs have been awarded both to the pre-emptor and the vendee. If the basis of the rule laid down in Ishri v. Gopal Saran (1884) 6 All. 351 is equity, then in my view where there are cross orders as to costs, a pre-emptor should only be allowed to deduct from the sum which he has to deposit any balance due to him by way of costs. Where both he and the vendee have each to pay costs, then it would be, in my view, manifestly unjust to permit the pre-emptor to deduct from the sum to be deposited the whole amount of the costs awarded to him and to leave the vendee to recover his costs from the preemptor by execution or by any of other means. Where in a suit costs are awarded both to the plaintiff and the defendant, and such costs are equal, neither can recover anything from the other. Where the plaintiff's costs exceed the costs awarded to the defendant or vice versa, only the balance of such costs can be recovered by the person who has been awarded the larger amount. This is clearly laid down in Order 21, Rule 19, Civil P.C. which provides as follows:
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 (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.
7. It is clear from this Rule that the plaintiff in this case could never have recovered the sum of Rs. 169-10-0 as costs from the defendant because the defendant had been awarded a sum of Rs. 92-7.0 as costs against the plaintiff. The plaintiff could only have recovered the difference between these two sums, namely, Rs. 77-3-0. In the present case, the plaintiff has deducted from the amount which he was directed to deposit in Court a larger sum by way of costs than he could ever recover from the defendant. He has deducted from the sum deposited in Court a sum of Rs. 169-10-0 whereas the most he could ever have recovered from the defendant by way of costs was Rs. 77-3-0. If on the ground of equity a pre emptor is entitled to deduct his costs from the sum deposited, surely he should not be allowed to deduct more than the costs which he can eventually obtain from the defendant. In my view it would be inequitable to permit the plaintiff in this case to deduct anything more from the sum deposited than the actual amount of costs which he could recover.
8. It has been argued on behalf of the plaintiff-respondent that he is entitled to deduct the whole of the costs awarded to him, because the decree did not direct him to deposit a sum plus the costs awarded against him. Order 20, Rule 14, Civil P.C., directs that where a Court decrees a claim to pre-emption, it should direct not only the payment into Court of the purchase money but also the payment into Court of costs if any decreed against the plaintiff. Had the present decree directed such clearly, the plaintiff could have deducted from the total sum the total amount of costs awarded to him. The decree does not comply with the provisions of Order 20, Rule 14, Civil P.C., as it only directed the plaintiff to deposit the actual purchase price. In my view however the plaintiff cannot obtain any real assistance in this case from the fact that the decree did not direct him to deposit the costs payable by him as well as the purchase price. As I have stated, the rule permitting a pre-emptor to deduct costs payable to him from the purchase price deposited is a rule of equity, and in my view where there are cross orders as to costs, equity demands that the pre-emptor should only deduct from the purchase price deposited the actual amount of costs, which he could recover, that is the balance due to him after deducting the costs payable by him to the vendee.
9. In my view the defendant's application should not have been dismissed and the lower Courts should have treated the decree as a decree of dismissal. I therefore allow this appeal, set aside the decrees of both the lower Courts and remand the case to the Court of first instance through the lower Appellate Court to be finally determined according to law. The appellant must have the costs of this appeal and the costs incurred by him in the Courts below. Leave to appeal under the Letters Patent is granted.