DUVVDA BALAKRISHNAMMA CHOUDURY Vs. DUWADA KAMESAM CHOUDURY

JUDGEMENT

(1.) These two Civil Miscellaneous Appeals arise out of the two E. P. Nos. 54 and 55 of 1952 in O.S. No. 64 of 1945 and O.S. No. 58 of 1949 respectively on the file of the Court of the Subordinate Judge of Srikakulam. The petitioners in both E. Ps. (respondents in both the appeals) who are the legal representatives of one Hari Krishnamma sought to set off two decrees in O.S. Nos. 64 of 1945 and 58 of 1949 in their favour against the amount due from them to their judgmcnt-debtors (one Balakrishnamma and his sons) under the decree in O.S. No. 47 of 1915. The respondents are liable to pay an amount of Rs. 7,243-13-4 by 23rd of November, 1946 to the appellants. Under the decrees in O.S. No. 64 of 1945 and O.S. No. 58 of 1949 the appellants owed the respondents Rs. 2,496 towards mesne profits and Rs. 1,429-4-0 towards costs in O.S. No. 64 of 1945 and an amount of Rs. 5,400 plus an amount of Rs. 853-14-0 for costs in O.S. No. 58 of 1949. The decree in O.S. No. 47 of 1915 is a decree against the respondents in their capacity as the legal representatives of Hari Krishnamma, and as such, of course, limited to the assets of the deceased available in their hands while the decrees in O.S. No. 64 of 1945 and O.S. No. 58 of 1949 are ordinary decrees for money. The lower Court has allowed the set-off claimed and the appellants against whom that claim was allowed, impugn the correctness of the lower Court's order.

(2.) In the first place, Mr. Venkatesam, learned counsel for the appellants contends that appeals against the decrees in O.S. Nos. 64 of 1945 and 58 of 1949 are pending in this Court, that the decrees have not become final and that in the circumstances the set-off should not be allowed, at any rate, without security being taken from the respondents under Order 41, rule 6 of the Code of Civil Procedure. It is frankly conceded by him however that no such direction was sought from the lower Court. Mr. Venkatesam however says that as the appeals are now pending in this Court, we may as well pass the necessary order. We are not however prepared to do so. The appeals themselves are not now before us. It is true that they are pending in this Court; but the matter should be properly considered only in interlocutory applications made in the respective appeals. Further Order 41, rule 6, Civil Procedure Code, provides for direction as to security being made only on sufficient cause being shown by the appellant. A mere request for such a relief cannot, in our opinion, constitute " sufficient cause " within the meaning of that phrase. The appellants may, if so advised, take out appropriate applications in the appeals.

(3.) The next and principal contention raised by the learned advocate for the appellants is that as the decree which they have obtained against the respondents is one limited to the assets of the deceased Hari Krishnamma, the parties do not fill the same character in all of them and that the respondents are not therefore entitled to claim a set-off. Before we examine the decisions cited, we may refer to the relevant provisions of the Civil Procedure Code. They are contained in Rules 18, 19 and 20 of Order 21. It is enough however to extract for the present purpose sub-rules (1) and (3) of Rule 18 and R. 20.