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Jangli Das Vs. B. Lal Behari and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All1056; 152Ind.Cas.96
AppellantJangli Das
RespondentB. Lal Behari and anr.
Excerpt:
- - 750. having carefully considered his contention, i am clearly of opinion that he is impeaching a finding which is based on evidence. , clearly shows that if the garnishee disputes his liability to the judgment-debtor, the issue arising from such dispute has to be determined, and that if the liability is found to exist, the court is to pass an order against the garnishee directing him to pay to the decree-holder what he is found liable to pay to the judgment-debtor. i hold that the language of rule 19 is wide enough to cover a case like the one before me.niamatullah, j.1. this is an appeal by one jangli das, decree-holder. the circumstances, in which it has arisen, are briefly as follows : baqaullah execuated a deed of usufructuary mortgage on 20th january 1927, in favour of the respondent lal behari lal in respect of a house and certain lands which were in the occupation of the decree-holder jangli das. subsequently, on 1st february 1928, baqaullah executed a promissory note in favour of jangli das in consideration of rs. 1,200. later on, baqaullah executed a sale-deed in respect of the property covered by the mortgage, already mentioned, in favour of the mortgagee lal behari lal for a certain sum, out of which ra. 1,200 was left for payment to jangli das in satisfaction of the promissory note already referred to. lal behari lal did not.....
Judgment:

Niamatullah, J.

1. This is an appeal by one Jangli Das, decree-holder. The circumstances, in which it has arisen, are briefly as follows : Baqaullah execuated a deed of usufructuary mortgage on 20th January 1927, in favour of the respondent Lal Behari Lal in respect of a house and certain lands which were in the occupation of the decree-holder jangli Das. Subsequently, on 1st February 1928, Baqaullah executed a promissory note in favour of Jangli Das in consideration of Rs. 1,200. Later on, Baqaullah executed a sale-deed in respect of the property covered by the mortgage, already mentioned, in favour of the mortgagee Lal Behari Lal for a certain sum, out of which Ra. 1,200 was left for payment to Jangli Das in satisfaction of the promissory note already referred to. Lal Behari Lal did not however pay off Jangli who instituted Suit No. 395 of 1930, for recovery of what was due to him under the promissory note. He impleaded his debtor Baqaullah and Lal Behari Lal who had rendered himself liable to satisfy the promissory note in terms of the sale-deed in his favour. Jangli's suit was decreed against Baqaullah but was dismissed against Lal Behari Lal to whom Rs. 73-8-0 was awarded as costs against the decree-holder Jangli. Jangli Das applied for execution of his decree, and took garnishee proceedings against Lal Behari Lal under Order 21, Rules 131 to 139, Civil P.C. His case was that Lal Behari was indebted to his judgment-debtor Baqaullah. to whom the unpaid purchase money was still due and must satisfy the decree in favour of Jangli to the extent of his (Lal Behari's) liability to the judgment-debtor Baqaullah. A notice was issued to Lal Behari Lal under Rule 131, Order 21, Civil P.C. to show cause why he should not be ordered to satisfy the decree in favour of Jangli Das. Lal Behari Lil disputed his liability to Baqaullah, and also his liability to satisfy the decree of Jangli Das, on certain allegations, including two which alone are material for the purpose of this appeal, namely that he had paid Rs. 650 to Baqaullah and was therefore not liable to the decree-holder to that extent any longer. He also claimed a set-off in respect of Rs. 73.8-0 awarded to him as costs against Jangli, in case the latter was entitled to recover any sum from him as garnishee.

2. The Court of first instance (the Munsif of Cawnpore), held that the som of Rs. 650 was not, in fact, paid by Lal Behari Lal to Baqaullah, He also held that Lal Bahari was not entitled to a, set-off in respect of Rs. 73-8-0. Accordingly he ruled that the decree-holder Jangli Das was entitled to recover, inter alia, the sum of Rs. 650 from Lal Behari Lal and that the latter was not entitled to claim a act-off in respect of Ra. 73-8-0. Lal Bahari Lal appealed to the Court of the Subordinate Judge, who took a contrary view and definitely held, after considering the evidence bearing on the point, that the sum of Rs. 650 had, in fact, bean paid by Lal Behari to Baqaullah, so that he was no longer liable to pay that sum. The learned Subordinate Judge also held in favour of Lal Bshari Lal as regards his right to obtain a set-off in respect of Rs. 73-8-0. In the present second appeal I am concerned with two questions only : (1) whether the sum of Rs. 650 was, in fact, paid by Lal Behari to Baqaullah, as alleged by him; and (2) whether he is entitled to a set-off in respect of Rs. 73-8-0.

3. The learned Counsel for the appellant decree-holder has impugned the finding of the learned Subordinate Judge as regards the sum of Rs. 750. Having carefully considered his contention, I am clearly of opinion that he is impeaching a finding which is based on evidence. No error of law is attributed to him in arriving at that finding, which is conclusive in second appeal. No further notice therefore need be taken of that aspect of the case. As regards Lal Behari Lal's right to obtain a set-off in respect of Rs. 73-8-0 the contention put forward on behalf of the appellant decree-holder has reference to certain provisions of the Civil Procedure Code and can be entertained in second appeal. The only question is whether that contention is sound.

4. The learned Munsif who negatived the right of Lal Behari to obtain a set-off, relied on Order 21, Rule 18, Civil P.C. and held that, inasmuch as the dacree in favour of Jangli Das and that in favour of Lal Behari Lal for costs awarded to him against Jangli Das, are not decrees passed In two separate suits, one cannot be set off against the other. He did not however proceed to consider the further question whether, assuming the decrees were not passed in separate suits, a set-off can nevertheless be allowed. The learned Subordinate Judge, on the other hand, held that Order 21, Rule 132, Civil P.C. can be so construed as to make Lal Behari Lal and Jangli Das judgment-debtors to each other in the same decree and therefore entitled to claim set-off against each other. A reference to Rules 131 to 133, Order 21, Civil P.C., clearly shows that if the garnishee disputes his liability to the judgment-debtor, the issue arising from such dispute has to be determined, and that if the liability is found to exist, the Court is to pass an order against the garnishee directing him to pay to the decree-holder what he is found liable to pay to the judgment-debtor. Rule 139 declares that such order has the force of a decree. Rule 19 of the same order provides that:

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 aa remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

5. It seems to me that the conjoint effect of Rules 19, 132, 133 and 139, Order 21, Civil P.C. is that if the garnishee is ordered to pay a certain sum of money to the decree-holder such order is a decree which virtually becomes part and parcel of the original decree passed in the suit. It cannot be said that the two decrees are decrees in separate suits because the order against the garnishee, which ex hypothesi amounts to a decree has been passed in execution proceedings in the same suit. In my opinion, when an order of payment is passed against a garnishee, such order supplements the decree passed in the original suit. It cannot be contended, in these circumstances, that Rule 19 does not apply, for the reason that 'the parties' are not entitled to recover sums of money from each other under the decree sought to be executed. I hold that the language of Rule 19 is wide enough to cover a case like the one before me. For the reasons stated above, I uphold the order appealed from and dismiss this appeal with costs. Leave to appeal under the Letters Patent la granted.


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