SIDHESHWAR PRASAD SINGH Vs. SONU LAL

JUDGEMENT

(1.) This is an appeal by the decree-holder, who is aggrieved by the decision of the learned District Judge of Gaya, dated 18 July 1941, by which he has allowed the set-off of a cross-decree in the following circumstances.

(2.) The appellant obtained a decree for Rs. 2147-10-6 against Sonu Lal, Mahabir and Ramchandra. He was dissatisfied with this decree, and, therefore, has appealed against a portion of the claim which has been disallowed, but nevertheless he has proceeded to execute the decree so far as it stands unchallenged by the judgment-debtors. In Suit No. 272 of 1938, the three judgment-debtors named above, together with four sons of two of these judgment-debtors, obtained a decree for payment of Rs. 15,915 against the appellant. The appellant preferred an appeal to this Court on 22 October, 1940, and that it numbered as First Appeal No. 195 of that year. In the meantime the respondent, that is to say the decree-holder, in Rs. 15,915 decree also put his decree into execution and claimed that the decree of Rs. 2147-10-6 should be set- off in part against the larger decree. The learned Subordinate Judge disallowed the application under Order 21, Rule 18, Civil P.C., upon the ground that the parties were not the same and that it was unknown whether the four sons of the decree- holders were joint or separate with their fathers, and further that they have not their say in the present dispute and therefore it was unknown whether they would repudiate or not the decree under execution or would admit its liability. He also pointed out that the execution of the decree of the judgment-debtors, namely Rs. 15,915 decree has been stayed on certain condition by the High Court. Accordingly he refused to allow the set-off.

(3.) Against this decision there was an appeal to the learned District Judge before whom the respondents took the precaution of putting in an application on behalf of the four sons that they had no objection if the set-off was allowed. The only question before the learned District Judge was therefore whether the set-off should be allowed in view of the fact that execution of the larger decree had been stayed, in other words, whether the decree was or was not capable of execution within the meaning of Order 21, Rule 18, Civil P.C. The learned District Judge took the view that the decree was capable of execution notwithstanding its having been stayed by the order of this Court and accordingly he allowed the setoff which was claimed by the respondents. Hence the appeal to this Court.