1. Three points were raised in the grounds of appeal in this case The first point (as to costs), and the third point raised in the first and third grounds of appeal respectively were given up at the hearing; and we have only to dispose of the question raised in the second ground of appeal.
2. The decree-holder (Appellant) Hury Doyal Guho Mujumdar contends that the Court below was wrong in allowing the judgment-debtor Din Doyal Guho to set-off against the amount of the decree-holder's decree the sum of Rs. 51-13, being the amount of a decree which Din Doyal, the judgment-debtor, had obtained against the decree-holder appellant and another person. I have considered this matter, and think that the decision of the learned District Judge is correct upon this point. Illustration (b) of Section 246 of the Code of Civil Procedure is as follows: 'A and B co-plaintiffs obtain a decree, for Rs. 1,000 against C, and G obtains a decree for Rs. 1,000 against B. G cannot treat his decree as a cross-decree under this section.' The reason of this is plain. The liability of C under the decree obtained by A and B is a liability not to B only, who is C's debtor under the second decree, but to B and another person A.
3. In the case now before us, A, the decree-holder, has obtained a decree against C, namely the decree which is now being executed, but C also obtained a decree against A and B, namely the decree for Rs. 51-13. Now it is clear that C could, if he chose, execute this second decree for the whole amount as against A. He is, therefore, in my opinion equally entitled to execute in another way, that is, by setting off the amount thereof as against A's decree. This was the very point decided in the case of Mitchell v. Oldfield 4 T.R. 123.
4. I think, therefore, that the order of the District Judge is correct, and that this appeal should be dismissed with costs.
Richard Garth, C.J.
5. I have had some doubt about this case, but as my learned brother is disposed to approve of the judgment of the Courts below, and as his view is in accordance with the English authorities, I do not think it right to differ from him.
6. My doubt has arisen from the language of Section 246. That section is a reenactment of Section 209 of the old Code; and both are founded upon the equitable principle, which has long prevailed in England, of setting-off cross judgments in execution (see Archbold's Chitty's Practice, 11th edition, 711). My learned brother is quite right in saying that according to the English rule the judgment-debt due from Din Doyal in this case would have been set-off against the debt due to Din Doyal from Hury Doyal and another; the principle being, that if the decree-holder in the one case has a right to take out execution against the decree-holder in the other case, the judgment may be set-off.
7. But Section 246 provides that this shall be done only when the cross decrees are 'between the same parties;' and a strict adherence to this language would no doubt tend to simplify the rule, although it would contract its operation.
8. I am not disposed, however, to dissent from the view of my learned brother. It is undoubtedly consonant with justice, as well as with the English rule, although it may sometimes render the application of the section more difficult to the subordinate judiciary.