DATTATRAYA BHASKAR Vs. RAMKRISHNA MARTOBA

JUDGEMENT

(1.) . This appeal arises out of execution proceedings. The plaintiffs and defendant No.4 were mortgagors and defendants Nos. 1 to 3 were mortgagees of certain properties. The plaintiffs filed suit No.144 of 1927 for redeeming the mortgage and as defendant No.4 did not join them in filing the suit he was impleaded as a defendant, A preliminary decree for redemption was passed on November 28, 1930, which provided that the plaintiffs and defendant No.4 together should pay Rs. 1,600 to defendant No.1 and Rs. 300 to defendant No.3 within six months, and that on making the payment they should treat the mortgage as redeemed and take possession of the mortgaged property. If the plaintiffs and defendant No.4 failed to make the payment within the said period, defendants Nos. 1 and 3 were to apply for such orders as they might be legally entitled to. Defendant No.1 was ordered to pay the plaintiffs' costs. Defendant No 1 appealed against the decree but his appeal was dismissed and he was ordered to pay the costs of the plaintiffs and defendant No.4 in separate sets. Defendant No. l's second appeal also was dismissed and he was ordered to pay the costs of the plaintiffs and defendant No.4 in one set. Defendant No, 4 then presented darkhast No.478 of 1939 to recover the costs awarded to him. But that darkhast was disposed of and defendant No.4 was awarded Rs. 16-5-7 as his costs of the darkhast. The present darkhast was filed by defendant No.4 to recover Rs. 120-13-7 as the costs awarded to him in all the three Courts from defendant No.1. Defendant No.1 contended that defendant No, 4 could not take out any execution against him as he had been awarded Rs. 1,600 and as the sum due to him exceeded the sum payable to defendant No.4 under the decree, he alone was entitled to take out the execution of the decree, for the amount due to him after deducting the smaller sum due to defendant No.4. He relied upon the provisions of Order XXI, Rule 19, of the Civil Procedure Code, but the executing Court held that the provisions of that rule were not applicable and ordered the darkhast to proceed. In appeal the learned District Judge held that defendant No, 4's darkhast was barred by Order XXI, i. 19, of the Civil Procedure Code, and dismissed the darkhast with costs.

(2.) ORDER XXI, Rule 19, provides that where an application is made to a Court for execution of a decree under which two parties are entitled to recover sums of money from each other, then 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. It is contended on behalf of defendant No, 1 that under the decree he is entitled to recover Rs. 1,600 whereas defendant No.4 is entitled to recover Rs. 120-13-7 only and therefore execution can be taken out only by him as he is to recover a larger amount. But ORDER XXI, r, 19, obviously presupposes that but for that rule each party would be entitled to recover a sum of money by execution of that decree. But the decree in favour of defendant No.1 is only a preliminary decree and he cannot recover any amount under that decree. It is only after the decree is made final that he becomes entitled to recover the amount awarded to him by executing the final decree. If so, it is clear that ORDER XXI, Rule 19, has no application to the present case.

(3.) SANKARA v. Gopala (1899) I. L. R. 23 Mad. 121 and Sidu v. Bali (1892) I. L. R. 17 Bom. 32 were also referred to, but all that was held in those eases was that the party which was required to pay the larger sum might deduct the smaller sum due from the other party and pay only the balance. Similarly in the present case the plaintiffs and defendant No, 4 might have deducted the costs awarded to them from the larger sum which they were required to pay for redemption. But there is nothing in any of these cases which indicates that it is obligatory upon them so to deduct. They might pay the full amount in Court and execute the decree for recovering the costs awarded to them. So long as the decree in favour of defendant No.1 is not made final, it cannot be said that he is entitled to recover any sum of money under that decree and hence Order XXI, Rule 19, is not applicable to the present darkhast. This was the view taken in L. Kunj Behari v. Abdulla [1944] A. I. R. Oudh 247 and I respectfully agree with it. The lower appellate Court was wrong in dismissing the appellant's darkhast as not tenable.