1. The appellant in this case obtained a decree for rent for Re. 5,292 annas 10, 5 gandas together with Rs. 551 annas 13 as costs. Under the same decree the defendant also was to get from the plaintiff the sum of Rs. 345, 1 anna on account of costs. There was an appeal against that decree by the plaintiff on the question whether the lower Court was right in holding that the plaintiff must proceed against certain property in execution of the rent decree and his appeal succeeded.
2. In the decree of this Court it was stated that 'the decree of the lower Court be varied in the manner following, namely, that the decree, in so far as it directs that the plaintiff shall recover the decretal amount with costs and interest by auction sale either of miras ijara or the property given in security, be and the fame is hereby set aside and in lieu thereof it is ordered and decreed that the execution of the decree for the realisation of the decretal amount do proceed against the properties in Schedules A and B of Schedule I, if still unsold, and then against the other properties of the defendants: And it is further ordered and decreed that save and except the variation as aforesaid, the decree of the lower Court be and the same is hereby affirmed.' The decree then goes on to state that the plaintiff would be entitled to certain costs of this Court as also the costs of the lower Court from the defendant. Nothing was said as to the costs payable by the plaintiff to the defendant.
3. The plaintiff decree holder applied for execution of the decree and realised the entire amount of the decree without getting off the amount of costs which the defendant was to get from him under the decree under the provisions of Order XXI, rule 19, Civil Procedure Code. The defendant then made this application for execution of the decree in respect of Rs. 245, 1 anna, the amount of costs awarded to him against the plaintiff. The plaintiff raised objections to the execution of the decree which were disallowed by the Court below.
4. The plaintiff-appellant before us has raised two contentions. The first is that under the decree of the High Court, the defendant was not entitled to any costs at all, and secondly, that the defendant was not entitled to execute the decree, his only remedy having been to set off the amount due to him under the provisions of Order XXI, rule 19.
5. The first contention relates to the construction of the decree. It is true that in the decree of this Court, there is nothing said as to the costs which the defendant was to get from the plaintiff under the decree of the lower Court, although it mentions the costs which the plaintiff is to get from the defendant. But in the earlier portion of the decree, it is expressly stated that 'save and except the variation as aforesaid, the decree of the lower Court be and the same is hereby affirmed.' That shows that the decree of the Court of first instance was affirmed except as to the matter with respect to which this Court varied the decree, and the mere fact that the costs payable to the plaintiff by the defendant were mentioned in the latter part of the decree (as in the printed form) does not necessarily show that the decree of the lower Court in go far as it awarded costs to the defendant was set aside. We are accordingly of opinion that the lower Court was right in holding that the defendant was entitled to get costs from the plaintiff.
6. The next question is whether the defendant is entitled to execute the decree. Now, Order XXI, rule 19, of the Code lays down that 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. Under this rule, therefore, the only party entitled to execute the decree is the party entitled to the larger sum, but the party entitled to the larger sum is, under that rule, to take out execution for so much only as remains after deducting the smaller sum and satisfaction for the smaller sum has to be entered upon the decree. This was not done, The plaintiff, therefore, in taking out execution for the entire amount of the decree without deducting the sum due to the defendant, had acted in contravention of the provisions of that rule.
7. Had the attention of the Court been drawn to the fast that the defendant was entitled to a certain sum under the decree, there is no doubt that the amount would have been deducted and the plaintiff would not have been allowed to take out execution for the entire amount and satisfaction of the amount due to the defendant would have been entered upon the decree. In these circumstances, we think that the plaintiff ought to refund the amount which he had improperly taken under the decree and although, strictly speaking, the defendant is not entitled to proceed in the ordinary way for execution of his decree, we think that having regard to the circumstances of the case the defendant should be given relief under the provisions of Section 151, Civil Procedure Code, upon the application made by the defendant.
8. The result is that the appeal is dismissed, but in the circumstances we direct that each party do bear his own costs in both Courts.