ANOP CHAND Vs. HIRACHAND

JUDGEMENT

(1.) These two miscellaneous execution appeals are connected cases and arise under the following circumstances:-

(2.) Heerachand and Mst. Umrao Kanwar filed a suit tor the sale of the mortgage- property against Mishrimal and obtained a preliminary decree on 5-7-57. They had also obtained another decree for Rs. 2159/13/- on 20-8-54. Before they obtained a preliminary decree on the mortgage-debt, it is alleged that they had assigned the mortgage-debt along with the decree of Rs. 2159/13/- to Pukhraj and others (hereinafter called the assignees). Heerachand and Mst. Umrao Kanwar (hereinafter called the assignors) got the final decree in the mortgage- suit on 11-3-58. Before that on 19-10-57 the assignors had also assigned both the decrees to the assignees. Mishrimal had filed a suit against the assignors in the Court of District Judge, Balotra on 20-9-1957. That suit was decreed on 315-58 and the decree for Rs. 17083.12nP was passed in favour of Mishrimal against the assignors. Mishrimal applied for the execution of his decree dated 31-5-58 and prayed for the attachment of the decrees dated 11-3-58 and 20-854 obtained by the assignors and further prayed that these decrees being cross-decrees may be set off against each other. To this the assignees objected. The main ground that has been urged on their behalf is that the assignors had, lost all interest in the assigned decrees and the decree against the assignors cannot be set off against the decrees of the assignees. The learned Senior Civil Judge, Sirohi, by his order, dated 16-4-59, held that Mishrimal was entitled to set off the cross-decrees under Order 21 Rule 18 of the Code of Civil Procedure. The assignees have filed Civil Execution First Appeal No. 13 of 1959 against this order. Thereafter on 28-9-59 the learned Senior Civil Judge, in pursuance of his order dated 16-4-59, ordered that satisfaction be recorded in the decrees referred to above in accordance with the provisions of Order 21, Rule 18 of the Code. D. B. Miscellenous Execution First Appeal No. 18 of 1959 has been preferred by the assignees against the said order.

(3.) The main points that have been urged on behalf of the appellants are that on 19-10-57 when the decrees were assigned by the assignors to the assignees, there was no decree in existence in favour of Mishrimal against the assignors and the lower Court was wrong in holding that under Section 49 of the Code of Civil Procedure, decrees of the assignees were subject to equitable set off which Mishrimal could enforce against the assignors in respect of his decree.