M L M MAHALINGAM CHETTIAR Vs. RAMANATHAN CHETTIAR

JUDGEMENT

(1.) This is a consolidated appeal against the orders dated 2 October, 1934, and 1 February 1935, of the High Court of Madras affirming two orders dated 23 December 1931, of the Court of the Subordinate Judge of Ramnad at Madura. The appeal arises out of certain execution proceedings, and the principal question to be determined is whether in the case of cross decrees for money the right of the party holding the decree for the larger amount to set off the smaller decree against him is defeated by reason of the smaller decree having been attached by third parties. The facts that give rise to the appeal are not in dispute and can be stated with reasonable brevity. On 37 November 1911, the appellant's father, one Ramanathan Chettiar, obtained a decree for a sum of Rs. 46,253 odd with further interest and costs against respondent 1 and his father Subrahmanyam Chettiar in Original Suit No. 77 of 1911 in the Court of the Temporary Subordinate Judge of Ramnad. On 12 September 1917, respondent 1's father, the said Subrahmanyam, obtained a decree in Suit No. 103 of 1910 against the said Ramanathan Chettiar in the same Court for Rs. 33,068-0-9 and further interest. This decree was affirmed by the High Court on 26 April 1928. Thereupon, viz., on 25 July 1928, the appellant's father applied for execution of his decree in Suit No. 77 of 1911 by Execution Petition No. 109 of 1928. He asked (1) that the decree obtained against him by respondent I's father in Suit No. 153 of 1910 should be attached; (2) that the decree so attached should be executed by him as attaching decree- holder; and (3) that the amount realized by execution of the attached decree should be set off against the decretal amount due to him in Suit No. 77 of 1911.

(2.) The decree in Suit No. 153 of 1910 was accordingly attached by order of 14 November 1928. The two decrees having been passed by the same Court, the order was made under R. 53 (1) (a) of Order 21. By virtue of sub-s. (3) of the same Rule the attaching creditor thereupon became the representative of the holder of the attached decree. By this time, however, both the father of the appellant and the father of respondent 1 had died and the appellant and respondent 1 had become the respective holders of the two decrees. On 2nd November 1928, the appellant filed in the execution proceedings execution application No. 518 of 1928, which is one of the subjects of this appeal. By it he asked that execution should be ordered for the balance due to him from respondent 1 after deducting the amount due from him under the decree in Suit No. 153 of 1910. The appellant also on the same date filed a memorandum of satisfaction of the decree in Suit No. 153 of 1910. This memorandum is the other subject-matter of this appeal. The application for set off and for execution of the balance of the decree in Suit No. 77 of 1911 and an application by the appellant to have the memorandum of satisfaction recorded came on for hearing together before the Subordinate Judge of Ramnad. The applications were opposed both by respondent 1 as the judgment creditor in Suit No. 153 of 1910 as well as by respondents 2 to 10 inclusive. These last-mentioned respondents as judgment creditors of respondent 1's father had attached the decree in the last-mentioned suit on varying dates of which 26 August 1918 would appear to have been the earliest. The attachment of that date had been obtained by the holder of a decree that had been passed in another Court in Suit No. 110 of 1915. The attachment had therefore been effected under the provisions of R. 53 (1) (b) of O. 21 by the issue to the Court of the Subordinate Judge of Ramnad at Madura by the Court effecting this attachment of a notice in the words following: You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor.

(3.) Before continuing this narrative of the facts it will be convenient to set out the relevant part of O. 21, R. 18, upon which the appellant relied in support of his applications, and the relevant part of S. 73, Civil P. C., upon which the opposition of the respondents was based. They are as follows : R. (18) (1). "Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, then- (a) if the two sums are equal, satisfaction shall be entered upon both decrees; and (b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum." S. 73. "Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons." The two applications were dismissed by the Subordinate Judge by orders of 23 December 1931. He appears to have taken the view that all the attaching creditors were interested in the smaller decree and that without their concurrence it could not be set off against the larger decree. The appellant thereupon preferred two separate appeals to the High Court, the one against the order refusing to execute for the balance in Suit No. 77 of 1911, after allowing a set- off of the smaller decree, and the other against the rejection of the. memorandum of satisfaction of the smaller decree. The appeals came before Madhavan Nair and Pandrang Row JJ. who on 2 October, 1934, delivered judgment dismissing both appeals. They rightly pointed out that O. 21, R. 18 only applies where both the decrees are before the Court for execution. But they considered that as the decree in Suit No. 153 of 1910 had not been actually attached by the appellant's father when he filed his execution petition on 25 July 1928 he was not at that time entitled to execute that decree. They further held that even if this objection-which they agreed was an extremely technical one-was got over, the decree could not be said to be before the Court for execution as it had been attached by other decree-holders and without their concurrence or except on their behalf, the appellant alone could not have the right to execute it. They were also of opinion that the decree was not "capable of execution'' in view of the fact that it had been attached by amongst others the decree-holder in Suit No. 110 of 1915 at whose instance a request had been directed to the Court of the Subordinate Judge of Ramnad at Madura in the terms that have been referred to earlier in this judgment. "This notice," they said, has not been cancelled and execution of the decree has not been applied for by the holder of the decree in O.S.No. 110 of 1915 or by his judgment-debtor.