1. The question involved in this appeal is whether the decree obtained by the appellant against one Azgarali and the decree obtained by Azgarali against the Appellant can be set off against each other.
2. It appears that the Appellant obtained a money decree for Rs. 1,129-12-6 against Azgarali on the 21st August 1912. Subsequently, in execution of a decree obtained by the Appellant against Azgarali upon a mortgage, the properties of the latter were put up to sale and purchased by the Appellant. Azgarali applied for setting aside the sale and it was set aside and an order for restoration of the properties to Azgarali and for mesne profits payable by the Appellant to Azgarali namely, Rs. 614-12-9, was passed on the 29th August 1919. In execution of his decree the appellant attached the decree obtained by Azgarali against him. Subsequently, on the 12th April 1920, the Chittagong Company, Ltd. obtained a decree for Rs. 1,635 against Azgarali and they attached Azgarali's decree against the appellant and got themselves substituted us attaching decree-holders. The Company then applied for execution of Azgarali's decree against; the Appellant on the 25th July 1921. The next day the Appellant applied for execution of his own decree and prayed fora set-off. This was disallowed by the Courts below and the decree-holder has appealed to this Court.
3. It appears that the main ground upon which the Courts below have disallowed the set-off is that the decree for mesne profits obtained by Azgarali against the Appellant was in a miscellaneous proceeding under Section 144 of the Civil Procedure Code, and not in a suit. But the determination of any question under Section 144 of the Code of Civil Procedure comes within the definition of a ' decree ' under Section 2 of the Code. That being so, we do not see that' there is any distinction between a decree in a suit and a decree in a proceeding under Section 144.
4. The learned vakil for the Respondents has contended that the provisions of Order 21, Rule 18, C.P.C., do not apply, because the decrees were not made in separate suits. But the observations made above apply to this contention also.
5. The second ground is that the Chittagong Company are not assignees of one of the decrees. But the Company as attaching decree-holders are assignees within the meaning of Order 21, Rule 18 and they are subject to the same equities as Azgarali was having regard to the provisions of Section 49 of the Code.
6. Thirdly, it has been contended that Sub-rule 3 of Rule 18, Order 21, C.P.C., does not apply to the present case, as the decree-holder in one of the cases is not the judgment-debtor in the other. But leaving aside the distinction between a suit and a proceeding under Section 144, C.P.C., which we have already dealt with, the Appellant was the decree-holder in one suit and was the judgment-debtor in the proceedings under Section 144, taken by Azgarali against him. Even if the case does not come within the purview of Order 21, Rule 18 as contended by the learned Vakil for the Respondents, we do not think that the Court is powerless to direct a Bet-off in this case under the inherent powers of the Court. The appellant has got a decree for Rs. 1,129-12-6 against Azgarali and Azgarali obtained a decree for mesne profits though under Section 144, against the Appellant for a lesser sum, namely, Rs. 614-2-9. There is no reason why Azgarali should be allowed to execute his decree against the Appellant while the latter has a much larger sum due to him under his decree, and if the decrees could be set off, had Azgarali applied for execution of his decree we do not see why the Chittagong Company as attaching decree-holders standing in his shoes, should be allowed to execute the decree.
7. The learned Vakil for the Respondent has argued that in any case there ought to be a rateable distribution as the Chittagong Company have obtained a decree for a largo sum, namely Rs. 1,600 odd against the Appellant, but no assets have yet been realized and we do not think that we should be justified in making an order for rateable distribution in anticipation of assets being realised.
8. In these circumstances, we set aside the orders of the Courts below and send the case back to the Court of first instance for adjustment of the rights of the parties under the decrees in accordance with the observations we have made in our judgment.
9. The appellant is entitled to his costs in this Court. We assess the hearing fee at one gold mohur.