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Girdhar Das Vs. Triloki Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All130
AppellantGirdhar Das
RespondentTriloki Nath and ors.
Excerpt:
- .....of triloki nath were limited to those granted by section 73, civil p.c. to decree-holders who held decrees against the same judgment-debtor. it is alleged that triloki nath held these three decrees against rajnet and that girdhar das held five decrees against rajnet and therefore their rights were limited to rateable distribution and by one of the orders dated 30th july 1935, the court below has held that triloki nath is entitled only to rateable distribution. in general, section 73 does provide for rateable distribution between a number of decree-holders who hold decrees against the same judgment-debtor but it appears to me that when the question of cross-decrees arises as it does in the decree on which girdhar das relies, being one which rajnet holds against triloki nath, the.....
Judgment:

Bennet, J.

1. These are three execution first appeals brought by Girdhar Das, against Triloki Nath from three orders dated 20th July 1935, 30th July 1935 and 20th July 1935. The case is in regard to the execution of decrees and whether a set off should be allowed under Order 21, Rule 18 or whether such set off is barred by Rule 16 to an assignee. The decree in question ii Decree No. 45 of 1929, Rajnet v. Nageshar Ram and Triloki Nath. This decree was attached by the appellant Girdhar Dag on 19th January 1934 when over Rs. 5000 remained due on the decree. Girdhar Das has five decrees against Rajnet and it was in execution of one of those decrees that ha attached this decree. The position of Tri, loki Nath is as follows: decree No. 106 of 1928 was held by Mt. Phula Kuar v. Rajnet, and Triloki Nath purchased this decree from Mt. Phula on 3rd April 1935 and a sum of Rs. 751-2-0 remains due on it decree No. 507 of 1932, Moti Chand v. Rajnet was purohased by Triloki Nath on 4th April 1935 and Rs. 409-15-6 remains due on it decree No. 176 of 1928, Binaek v. Rajnet was also purchased by Triloki Nath and Rs. 1745 remains due on it, Triloki Nath claimed that under Order 21, Rule 18 he could set off these three decree against the amount of over Rs. 5000 due from him and Nageshar Ram to Rajnafc The claim made by the appellant is that under Rule 16 of Order 21,

the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder,

and it is argued that a transferee does not have any further right or title than the transferor of a decree had. That may be so, but in the present case it is not claimed for Triloki Nath that he has any right and title which the decree-holders from whom be purchased did not have. It is not a case of his rights but a case of his liabilities. Triloki Nath has a liability for over Rs. 5000 on the decree against Rajnet and for Triloki Nath the case is that he is entitled to lessen his liability under that decree by setting off decrees which he has now acquired against Rajnet. This is not a case of the title of the decree-holders from whom he purchased but of lessening his own liabilities and for that reason I do not think that Rule 16 is any bar to the application of Rule 18 in favour of Triloki Nath. No authority has been shown by learned Counsel for appellant for the proposition that Rule 18 will not apply to the case of an assignee of a decree. The contrary has been held in Triloki Nath v. Nageshar Ram First Appeal No. 126 of 1935, by me sitting singly in regard to this very decree in Suit No. 45 of 1929, Rajnet v. Nageshar and Alopi, the order being dated 12th February 1937. For these reasons, I consider that Triloki Nath was entitled to set off under Rule 18.

2. Another argument which was made by learned Counsel is that the rights of Triloki Nath were limited to those granted by Section 73, Civil P.C. to decree-holders who held decrees against the same judgment-debtor. It is alleged that Triloki Nath held these three decrees against Rajnet and that Girdhar Das held five decrees against Rajnet and therefore their rights were limited to rateable distribution and by one of the orders dated 30th July 1935, the Court below has held that Triloki Nath is entitled only to rateable distribution. In general, Section 73 does provide for rateable distribution between a number of decree-holders who hold decrees against the same judgment-debtor but it appears to me that when the question of cross-decrees arises as it does in the decree on which Girdhar Das relies, being one which Rajnet holds against Triloki Nath, the provisions of Order 21, Rule 18 cannot be ignored. If it were merely a question of the appellant and the respondent executing their decrees against other property of Rajnet Section 73 would apply, but the appellant desires to execute his decree against Rajnet by the attachment in execution of the decree which Rajnet has against Nageshar Bam and Triloki Nath and that is the purpose of his application. That being so, he comes under the particular rule, Order 21, Rule 18, and set-off must be allowed. I consider therefore that in the two orders of 20th July 1935 the Court below was correct in allowing set-off. In the order of 30th July 1935 the Court below was incorrect in allowing rateable distribution. An appeal was brought by Triloki Nath against this order and that appeal was allowed by me and Girdhar Das was a party to that appeal. The appeal of Girdhar Das against that order has therefore no merits and is not pressed and is dismissed with costs. I dismiss all three appeals with costs.


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