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M.L.M. Mahalingam Chettiar Vs. Ramanathan Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad587
AppellantM.L.M. Mahalingam Chettiar
RespondentRamanathan Chettiar and ors.
Cases ReferredAdwain Chandra v. Chittagong Co. Ltd.
Excerpt:
- .....for execution of the decree in o.s. no. 77 of 1911, out of which this appeal arises, the plaintiff decree holder asked that the amount due by him under the decree in o.s. no. 153 of 1910 may be set off against the amount due to him in o.s. no. 77 of 1911, and that he may be permitted to execute the decree in o.s. no. 77 of 1911 for the balance.2. the appellants' execution application was filed on 26th july 1928; long before this application, the decree in o.s. no. 163 of 1910 had been attached by various decree-holders. one of those decree-holders, namely the decree-holder in o.s. no. 110 of 1915, attached it on 26th august 1918. the several persons who have attached the decree in o.s. no. 153 of 1910 in execution of their decrees, opposed the appellant's application for set off on the.....
Judgment:

Madhavan Nair, J.

1. The plaintiff decree-holder in O.S. No. 77 of 1911, on the file of the Subordinate Judge of Bamnad at Madura, is the appellant. In that suit he obtained a decree against one Subramaniam Chetti and another for a sum of Rs. 46,000 odd. In O.S. No. 153 of 1910 on the file of the same Subordinate Judge the said ubramaniam Chetti, i.e. defendant 1 in O.S. No. 77 of 1911, obtained a money decree against various defendants of whom the plaintiff in O.S. No. 77 of 1911 was defendant 7. Under that decree defendant 7 had to pay the plaintiff therein a sum of Bs. 33,068-0-9 together with a sum of Rs. 1,624-4-4. for costs. In the application for execution of the decree in O.S. No. 77 of 1911, out of which this appeal arises, the plaintiff decree holder asked that the amount due by him under the decree in O.S. No. 153 of 1910 may be set off against the amount due to him in O.S. No. 77 of 1911, and that he may be permitted to execute the decree in O.S. No. 77 of 1911 for the balance.

2. The appellants' execution application was filed on 26th July 1928; long before this application, the decree in O.S. No. 163 of 1910 had been attached by various decree-holders. One of those decree-holders, namely the decree-holder in O.S. No. 110 of 1915, attached it on 26th August 1918. The several persons who have attached the decree in O.S. No. 153 of 1910 in execution of their decrees, opposed the appellant's application for set off on the ground that they have acquired rights in the decree and that those rights cannot be affected in any way by the appellant's claim. The question for determination is, whether the right to set off claimed by the appellant can in the above circumstances be granted. The lower Court answered the question in the negative. The provision for execution in the case of cross decrees is contained in Order 21, Rule 18, Civil P.C. Under Clause 1 of that Rule:

where applications are made to a Court for the execution of cross decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court,

satisfaction shall be entered upon both decrees if the two sums are equal : See Clause (a), and if the two sums are unequal, execution may be taken out in the manner provided in Clause (b). The respondents argue that in order to comply with the provisions of this rule there must be applications from the holders of the two decrees that are sought to be set off against each other, and that each of the decrees must be capable of execution at the same time by the Court. They contend (1) that in the present case there is no application from the decree-holder in O.S. No. 153 of 1910 for the execution of that decree and that (2) that decree was not capable of execution at the time by reason of its attachment by various other decree-holders. It is argued that if either of these conditions is not fulfilled,, then the prayer of the appellant cannot be granted.

3. In Ponnuswami Nadar v. Doraiswamy Iyer (1909) 32 Mad 336, it was held that iS. 246, Civil P. C. (Act 14 of 1882)(corresponding to Order 21, Rule 18 of the present Code) applies only where both the decrees which are sought to be set off against each other are before the Court for execution. In the present case can it be said that O.S. No. 153 of 1910 was before the Court for execution? Having regard to the facts this question can be answered only in the negative. The appellant's argument is that by reason of Ordea0 21, Rull 53, Clause 3, he having attached the decree in O.S. No. 153 of 1910, he is entitled to execute that decree and therefore both the decrees are before the Court for execution. This argument cannot be accepted. On 26th July 1928 when he filed E.P. No. 109 of 1928 the appellant had not as a matter of fact actually attached the decree in O.S. No. 153 of 1910; his prayers in the application were that the decree should be attached under Order 21, Rule 53, that the decree so attached be executed by him as attaching decree-holder and that the amount realised as a result of execution be set oft' for the suit decree. The respondent's contention that, strictly speaking, as the decree in O.S. No. 153 of 1910 had not been actually attached, the appellant could not ask the Court to treat him as an attaching decree-holder entitled to bring up the decree for execution, is not without force, though it is extremely technical; but even if we treat him as an attaching decree-holder in the circumstances, as he did ask for attachment of the decree, though only in the same petition, still it cannot be said that the decree was before the Court for execution as it had been attached by various other decree holders land without their concurrence or except ion their behalf also the appellant alone cannot have the right to execute that decree.

4. The next question is whether the decree in O.S. No. 153 of 1910 'was capable of execution at the same time by the Court.' We have already mentioned that by that time the decree in O.S. No. 153 of 1910 had already been attached under Order 21, Rule 53, at the instance of various decree-holders. The notice of attachment issued by the Court to the Subordinate Judge of Barnnad at Madura at the instance of the decree-holder in O.S. No. 110 of 1915 says that the decree in O.S. No. 153 of 1910 has been attached and you are therefore requested to stay the execution, of the above said decree in your Court until you receive an intimation from this Court that the present notice has been cancelled, or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor.

5. This notice has not been cancelled and execution of the decree has not been applied for by the holder of the decree-in O.S. No. 110 of 1915 or by his judgment-debtor. These conditions not having happened, it is clear that the decree in O.S. No. 153 of 1910 was by reason of this attachment not capable of execution at that time. The appellant strongly relied upon a decision in Adwain Chandra v. Chittagong Co. Ltd. 1925 Cal 102 in support of his contention. This-decision would seem to support him; but it is doubtful if it can be treated as a decision under Order 21, Rull 18, Civil P.C.,. for in the course of their judgment the learned Judges say:

Even if the case does not come within the purview of 0rder 21, Rull 18, as contended by the learned vakil for the respondents, we do not think that this Court is powerless to direct a set of in this, case under the inherent powers of the Court.

6. Further, an attaching decree-holder is: treated in that decision as an assignee within the meaning of Order 21, Rull 18, Civil P.C. We find it difficult to accept this as a correct statement of his position in law. For the above reasons we agree with the lower Court that the appellant is not entitled to claim the relief of set off put forward by him in his application for execution. But this does not mean that he is not entitled to execute the decree in O.S. No. 153 of 1910 he is entitled to execute it along with the other attaching decree-holders or on their behalf also. The appeal is dismissed, with costs of respondents 3 to 10. Respondents 4, 7 and 9 not having appeared either in person or by pleader the order as to costs will relate only to the rest of the respondents, namely resondents 3, 5, 6, 8 and 10.

7. C.M.A. No. 28 of 1932. - This appeal Irises out of a memorandum put in on behalf of the appellant as attaching decree-holder in O.S. No, 153 of 1910 asking the Court to record satisfaction of that decree as the amount due under it has been fully realised by being set off against the decree in O.S. No. 77 of 1911. The learned Judge rejected the memorandum of satisfaction as he did not allow the set off claimed by the decree-holder. As we have accepted the learned Judge's decision refusing set off as correct in C.M.A. No. 27 of 1932, it must follow that this appeal should also be dismissed. We make no order as to costs.


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