Venkatasubba Rao, J.
1. This case has had a long history. It was commenced in 1918 and what we hope is the final order, we are now pronouncing in 1936.
2. Before dealing with the appeal we must advert to a certain matter that has happened. The appellant filed an affidavit and persuaded the office to treat the respondent as a lunatic without notice to his counsel on the record. Some person was appointed as his guardian ad litem, whose name was entered in the cause-list in the place of the respondent's counsel. The respondent was not a lunatic so found by inquisition and the procedure adopted, we need hardly point out, is extremely irregular. At the request of Mr. Vaidyanatha Aiyar, the respondent's counsel, we directed that his name should appear in this day's list and whether the respondent is a lunatic or not, he has now had the benefit of being represented by his counsel on the record. His guardian ad litem, we may observe, did neither appear in Court, nor was he represented.
3. The question argued in the appeal is whether the plaintiff can be deemed to have carried out the direction in the decree in question in regard to the deposit of money into Court. That decree was passed by the High Court on 17th January, 1928, and it provided that on the plaintiff depositing into Court Rs. 500 within the time mentioned there, the defendant was to execute, and get registered, a deed of conveyance in her (the plaintiff's) favour; the decree further provided that the defendant was to pay the plaintiff a certain amount by way of costs.
4. The plaintiff deposited into Court within the time limited Rs. 157-15-0, that is to say, Rs. 500 less (i) the costs awarded to her by the decree, (ii) a further sum representing certain other costs which she was entitled to recover by way of restitution under Section 144, Civil Procedure Code, and (iii) the interest on certain items of costs.
5. It is contended for the defendant-respondent that there was a duty cast by the decree upon the plaintiff, to deposit the full amount of Rs. 500 and that she, having committed default, was not entitled to the reconveyance. Mr. Vaidyanatha Aiyar has strongly urged that Order 21, Rule 19, Civil Procedure Code, is inapplicable and that therefore the plaintiff was not entitled to deduct from the purchase money the costs awarded to her. The decree as worded gives the plaintiff the right to demand that the property shall be conveyed to her on her depositing the purchase money, but it does not confer upon the defendant a corresponding right, that is, he cannot on tendering the conveyance, claim the purchase-money from the plaintiff. It may therefore be argued, that as under the decree by its own force, the defendant is not entitled to recover a sum of money, Order 21, Rule 19, which refers to two parties 'entitled to recover sums of money from each other', is inapplicable. Whether independent of the decree the defendant can on tendering a proper conveyance demand the purchase-money, is a question which it is unnecessary for the present purpose to decidE.Assuming however that Order 21, Rule 19 is inapplicable, the question arises, did the plaintiff, in availing herself of the setoff and deducting the costs, exceed her right under the general law? There is a strong body of authority in favour of the view that the kind of right which the plaintiff claims, exists apart from the provisions of the Code. The point has been very fully considered by a Bench of the Allahabad High Court consisting of Straight, Order C.J., and Mahmood, J., in Ishri v. Gopal Saran I.L.R (1884) 6 All. 351, the decree there was made in a pre-emption suit and very closely resembles the decree in question. There also it was provided that the plaintiff was to obtain possession on payment of the purchase-money and that he was to get a sum by way of costs. The plaintiff deposited the purchase-money with the exception of a sum less than the amount of costs awarded to him and it was held that the principle underlying Sections 221 and 247 of the Code of 1882 (corresponding to Order 20, Rule 6 and Order 21, Rule 19 of the present Code) applied and that the plaintiff was entitled to deduct the costs, Mahmood, J., points out very forcibly that when under the same decree both the plaintiff's right and the defendant's liability are declared, it would be idle to drive the former to a separate proceeding to recover the costs. Referring to the argument advanced in that case on behalf of the defendant, the learned Judge makes the following trenchant observations:
The argument, though plausible, has no force. It seems to aim at giving to mere formality the significance of a substantive effect. For it seems to us to involve a very untenable proposition, that for a pre-emptor-decree-holder the only way to enforce his decree is to come into Court with the full purchase-money in the one hand, offering it to the judgment-debtors, and to stretch out the other hand asking them to give him the costs which the very decree, under which he is depositing the purchase-money, awards him. The argument also involves the contingency that a pre-emptor should pay up the purchase-money to the judgment-debtors in ready cash, and may have to wait possibly for years before recovering from them the costs awarded to him by the Court, and it is conceivable that he may never be able to recover them at all. We cannot regard such results as consonant with the principles of justice, equity, and good conscience, which we are bound to administer in such cases; and holding these views, we cannot adopt the reasoning upon which the judgment of the lower appellate Court proceeds, nor the argument urged before us in support of that judgment by the learned pleader for the respondents. The effect of our views is to apply, by analogy of Sections 221 and 247, the doctrine of set-off to the case before us - a course which is consonant in principle with that followed by Jackson, J., in the case of Jugo Mohun Bukshee v. Soorendronath Roy Choivdry (1870) 13 W.R. 106 long before the Legislature formulated the rules contained in the two sections just referred to.
6. To the same effect are the cases in Ram Lagan Pande v. Muhammad Ishaq Khan I.L.R (1919) 42 All. 181 and Umrao Singh v. Kanwal (1932) 141 I.C. 15 which also deal with pre-emption decrees.
7. The decree with which we are concerned is one directing specific performance, but in principle, for the present purpose, there can be no difference between such a decree and a decree in a pre-emption suit. In Hemendra Nath v. Tulshi : AIR1930All413 Singh the principle was extended to a decree for possession. In that case, the plaintiff was under the decree to get possession on depositing a particular sum and it was held that he was entitled to set off the costs against the amount he was directed to deposit. In Brijnath Dass v. Juggernath Dass I.L.R (1879) 4 Cal. 742 the right to set off the costs due to the plaintiff against the amount due by him, was recognised in a redemption suit. In that case it was held that the plaintiff was entitled to redemption on paying the amount directed less the costs awarded to him. The same principle was extended even further by a Bench of the Calcutta High Court in Krishnachandra v. P. Dhanabhandar Co. I.L.R (1934) 62 Cal. 298. The facts were, that the Subordinate Judge's Order under which the appellant had paid certain costs to the opposite party was subsequently reversed. Under a later Order of the Judicial Committee in the same suit, an amount representing costs was payable by him (the appellant) to his opponent. When that Order was sought to be executed, he claimed to deduct from the sum due, the amount payable to himself. It was held that, independent of Order 21, Rule 19, on general principles and in the exercise of the Court's inherent power, if could give effect to such a claim.
8. These cases in our opinion proceed on a correct principle and we are prepared to follow them. First, as to the costs expressly payable to the appellant under the decree, the matter stands thus : she could have brought into Court the full amount of Rs. 500 and simultaneously attached a portion of that sum for realising the costs due to herself. That would be a needless and idle formality to observe. Secondly, in regard to the costs due to her by way of restitution, the right to recover those costs also accrued to her in virtue of the same decree of the High Court. In short, the claims are in the nature of cross-demands arising out of the same transaction and the doctrine of equitable set-off allowed by Courts of Equity holds good.
9. Mr. Vaidyanatha Aiyar next contends that under the High Court's decree the plaintiff was not justified in deducting interest on the costs incurred in the first Court. We think the expression 'full costs' in the circumstances, includes the interest that had already been awarded to her by the lower Court. As regards the interest deducted on the costs due by way of restitution, we see no reason to think that the plaintiff acted wrongly. She calculated interest at 6 per cent, and had an application been made under Section 144, Civil Procedure Code, interest at that rate would have been granted to her.
10. In the result, we hold that the plaintiff has deposited the proper amount into Court. The appeal is allowed; the lower Court's Order is reversed and the order of the Court of First Instance is restored. The defendant shall pay the plaintiff's costs in the two Courts below; in this Court we make no Order as to costs.