Krishnaswami Ayyangar, J.
1. This is an appeal from an order of the Subordinate Judge of Ellore, confirming the decision of the District Munsiff of Kovur in E.P. No. 473 of 1937. That execution petition was filed for the purpose of recovering certain mesne profits decreed to the appellant in O.S. No. 5 of 1931 on the file of the Sub-Court of Ellore. The appellant obtained the decree now sought to be executed in the said suit which she had instituted for the purpose of setting aside a certain alienation made by her mother as her guardian. With regard to two items reliefs were granted to her. The decree contains the following directions:
(1) It is ordered and decreed that the alienation under Ex. XVI of item 2 of the property in the A schedule hereto attached be and the same hereby is set aside and the plaintiff do recover from the defendants 1 to 10 the said item 2 of the A schedule property with the past profits at the rate of Rs. 60 a year, for the years 1926, 1927 and 1928 and subsequent profits at the same rate until delivery of possession or the relinquishment of possession by the defendants with notice to the decree-holder through Court or the expiration of three years from this date, whichever event first occurs; on condition that the plaintiff should pay defendants 1 to 10 a sum of Rs. 339 within three months from this date;
(2) It is also ordered and decreed that the plaintiff's claim as regards the first item of the schedule property be and the same hereby is dismissed and that the defendants 1 to 10 pay the plaintiff the sum of Rs. 301 within three months from this date.
2. From this decree there was an appeal to this Court which resulted in a modification to this extent, namely, that the figure Rs. 350-1-0 was substituted for Rs. 339 in the decree of the Sub-Court, also a further period of three months was granted to the parties to make the payments directed by the decree. If the arithmetic of the matter is taken into account it will be found as a result of the decree as modified, that the appellant was on the date of the decree entitled to recover from the defendants Rs. 575-10-11, against Rs. 551-5-0 which she had herself to pay to them. In other words the appellant was entitled to recover a sum of Rs. 24-5-11 after setting off the amount due by herself to the defendants. On the 3rd July, 1936, an application was made by the decree-holder for a transfer of the decree for execution to the Court of the Subordinate Judge of Narasapur, and the decree was accordingly transferred. On the 15th September, 1936, E.P. No. 145 of 1936 was filed in the Court of the Subordinate Judge at Narasapur for obtaining delivery of possession of. item 2 mentioned in the decree and for recovery of mesne profits. On the 8th October, 1936, an order was made on this execution petition, but without notice to the defendants directing delivery of possession as prayed for, and it is common ground that possession was accordingly delivered. The present execution petition was filed on the 7th December, 1937, and the decree-holder prayed that the properties of the defendants may be attached and out of the proceeds of the sale thereof she may be paid a sum of Rs. 550-15-0 due to her for mesne profits besides another sum of Rs. 73-6-11 claimed as the amount of costs due to her. The execution petition has been dismissed by the District Munsiff of Kovur in whose Court it was filed, substantially on the ground that the appellant has forfeited her right to execute the decree for recovery of possession of the property by reason of her omission to pay the sum of Rs. 350-1-0 within the period of three months limited by the appellate decree.
3. It is not disputed that the money was not paid within time. The contention however of the appellant is that in view of the fact that a larger sum of money was owing to her she was under no obligation to pay any amount into Court at all as the claims have to be set off one against the other. It is true that in terms the decree has not directed the set off. It is also true that the language employed conveys the idea that the appellant should pay the money as a condition precedent to her obtaining delivery of possession. But we are of opinion that in view of the directions contained in the decree it could never have been the intention of the appellate Court to place the appellant under a liability to pay the amount within the period mentioned, while she herself was entitled to recover a larger sum from the defendants.
4. In this connection the provisions of Order 21, Rule 19, Civil Procedure Code, are most important. The rule says:
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.
5. This is a ease which falls under Clause (b) of the rule because the two sums in question are unequal. According to the rule the defendants were never in a position to take out execution of the decree in so far as it gives them a right to claim money from the appellant. Remembering that the duty of the appellant to pay must be regarded as correlative to the right of the respondents to demand payment can it be said that the appellant in the circumstances of this case was bound to pay the money into Court within the time limited? We think not. We are also of opinion that the appellant had, even apart from the provisions of the rule under consideration, the right to set off the amount due by the defendants against the amount due by her under the general law. This is in accordance with the decision of this Court in Chinnammal v. Chidambara Kothanar : AIR1936Mad626 . In our judgment the appellant was never under an obligation to pay this sum of Rs. 350-1-0 into Court, and that being so the omission to pay the money within the time limited by the decree is entirely without consequence. It has been suggested that the appellant's failure to file her execution petition within the period of three months mentioned in the decree distinguishes this case from the decision referred to above. We are unable to accept this distinction as a sound one. In that case even after setting off the amount due by the defendant to the decree-holder there still remained a balance payable by him which of course he must pay within the time limited. But here the result of the set off is to leave the decree-holder without any liability whatsoever and therefore it cannot be said that she was under a duty to pay any money into Court.
6. We consider that the decision of the Courts below cannot be supported. If there was no liability on the part of the appellant to pay, which is the position here, it is impossible to accept the argument that she forfeited the benefit of the decree by non-payment.
7. It was suggested that the previous order of the Court in E.P. No. 145 of 1936 in pursuance of which the decree-holder obtained delivery of possession of the property operates as res judicata preventing the respondents from raising the point adverted to above. We consider that there is no substance in this contention. The order was one made without notice to the respondents and cannot be the basis for the application of the rule of res judicata. It was also suggested that the lower appellate Court is in error in considering that the Court had no jurisdiction to extend the time limited by the decree. No extension of time is necessary at all in the circumstances of this case, because no payment had to be made by the decree-holder. In view of our decision upon the first point, ii is unnecessary to deal with this question in detail.
8. The result is, the appeal is allowed and execution will issue for the amount claimed in the execution petition. The appellant is entitled to her costs here and in the Courts below.