KERALA STATE ELECTRICITY BOARD Vs. CHELLAPPAN

JUDGEMENT

(1.) THE Kerala State Electricity Board represented by its secretary is the appellant in this appeal. THE respondent herein had obtained an award decree against the Electricity Board in arbitration O. P. No. 21 of 1973 on the file of the Subordinate Judge's Court, Trivandrum . That decree directs payment by the Electricity Board to the respondent a sum of Rs. 30,81,740. 07 with interest at 6% per annum from the date of the decree till the date of realisation. THEre is a further direction in that decree that the respondent should pay a sum of rs. 1,69,468. 78 to the judgment-debtor. THE short question that is raised in this appeal is whether under the aforesaid decree the respondent-decree holder is entitled to claim interest from the Electricity Board for the full amount of rs. 30,81,740. 07 payable to him under the decree from the date of the decree till the date of actual realisation of the amount payable under the decree. On behalf of the Board it is contended that by virtue of the provision contained in Order XXI R. 19 of the Civil Procedure Code a set-off has to be effected as on the date of the decree in respect of Rs. I, 89,468. 78, being the amount of the cross-claim decreed in favour of the Electricity Board, and hence the decree-holder is entitled to claim interest only on the balance left after effecting such set-off. THE lower court rejected the contention of the electricity Board and held that "the party entitled to the bigger sum will be entitled to take out execution after deducting from the amount due to him as per the decree calculated up to the date of payment the amount payable to the other party as per the decree". THE correctness of this view taken by the court below is challenged before us in this appeal filed by the Electricity board.

(2.) UNDER Order XXI R. 19, CPC. it is clearly laid down that where an 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, 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 be entered upon the decree. The clear effect of this provision is that as on the date of the decree itself a set-off is deemed to have been effected by the decree of the smaller sum payable under one claim as against the larger sum payable to the other party and satisfaction, for the smallest sum is to be entered eo instanti. The result is that only the balance amount remaining due after deducting the smaller sum from the larger sum can be treated as payable under the decree to the party entitled to the larger sum with effect from the date of the decree itself. This is the view that has been taken by Madhavan Nair, J. in Sreepathi Achariyar v. Sankaranarayana Iyer 1961 KLT. 875. We are in respectful agreement with the said view. It must then be held that the court below was manifestly wrong in holding that the decree-holder is entitled to calculate interest on the full amount stated as due to him under the decree without effecting any set-off in respect of the smaller sum which the Board is entitled to recover from him under the very same decree. The order of the court below is accordingly modified to the extent of holding that the decree-holder is entitled to recover interest from the judgment-debtor Board only in respect of the balance amount due under the decree after setting off the sum of Rs. 1,89,468. 78 as on the date of the decree itself. The appeal is allowed to the above extent. The parties will bear their respective costs.