MARUTHUVAMALAI MOOPANAR Vs. AVADAIACHI

JUDGEMENT

(1.) This appeal arises out of an order in execution of a maintenance decree. The decree was dated 30 September, 1935. It directed the first defendant to pay maintenance at a certain rate to the plaintiff and also directed the first defendant to pay Rs. 166-11-0 towards her costs. It directed the plaintiff to pay Rs. 282-12- 0 as costs to the first defendant and to pay Rs. 739-15-0 as court-fee due to Government and the plaintiff's charge for maintenance was burdened with a charge in favour of the Government for the amount of this Court-fee. The Government in 1936 executed the decree for the latter amount. In order to save the properties the first defendant paid into Court the balance due to the plaintiff after deducting the amount of his decree for costs. Apparently, it was objected on behalf of the Government that the Government's charge should be over the whole amount of the maintenance decree and not over the net amount and the first defendant, on 30 June, 1936 paid up the balance making Rs. 750 and odd claimed by the Government. On 9 November, 1938 the present execution petition was filed by the plaintiff claiming the balance due for maintenance less the major portion (but not. the whole) of the amount paid by the first defendant towards court-fee, no deduction being made in respect of the first defendant's decree for costs. When an objection was raised by the first defendant that he was entitled to set off for the amount of his decree for costs, the lower court held that this claim could not be sustained because the execution of that decree for costs was time-barred.

(2.) It appears that in coming to this conclusion the learned Judge overlooked the provisions of Order 21, Rule 19, Civil Procedure Code. Under that rule when the decree provides for the recovery of sums by two parties one against the other, it is only the party to whom the larger amount is due who is entitled to execute the decree. It seems to us to follow that limitation cannot run against the person who is entitled to the lesser decree at a time when that decree is not executable having regard to the provisions of Order 21, Rule 19. It is true that after the payment to Government in 1936 there was for a time a balance in favour of the first defendant as against the plaintiff. But that balance was being steadily reduced as maintenance accrued due and in any case the present claim is preferred within three years of the time of this payment. There can therefore be no question of limitation.

(3.) It is, however, contended for the plaintiff that in some way; the first defendant is barred from claiming to adjust his decree for costs against the plaintiff's decree, because, when the Government were executing the decree by enforcing the charge over the plaintiff's right to maintenance, the first defendant failed to establish his right to set off against the Government's claim the amount of his decree for costs. We are unable to understand how the fact that the Government were somehow or other able to recover from the first defendant a larger amount than was strictly payable by him at that time can be held to have barred a claim by the first defendant to adjust his decree against the plaintiff when the latter should come to execute. The most that these proceedings between the Government and the first defendant can be taken to have finally decided is that the extent of the Government's charge is not limited to the net amount of the plaintiff's claim for maintenance but extends over the gross amount of that claim. There was no decision that the first defendant could not in an execution petition brought by the plaintiff claim to adjust the amount of his decree against that of the plaintiff.