CHAJMAL DAS Vs. LAL DHARAM SINGH

JUDGEMENT

(1.) THE facts out of which this appeal has arisen are these. One Dharam Singh obtained a decree against Brij Bhukan Lal and others oh the 21 September 1895. That was a decree for sale upon a mortgage. After the sale of the mortgaged property the decree-holder obtained, on the 10 February, 1900, a decree under Section 90 of the Transfer of Property Act. In execution of this decree he caused a decree held by Brij Bhukan Lal and ors. against one Chajmal Das, dated the 9th September, 1892, to be attached. It is common ground-that the decree last mentioned was passed by the Court of the Subordinate Judge of Mainpuri, and was not in course of execution at the time when it was attached. It is also admitted that Dharam Singh by virtue of the attachment did not apply for the execution of the decree. It appears that Chajmal Das holds a decree, dated the 5 October, 1882, against Brij Bhukan Lal and ors. He came forward with an application to the Court which had attached Brij Bhukan's decree against Chajmal Das, and prayed that the amount of his decree, dated the 5 October, 1882, should be set off under Section 246 of the Civil P. C. against the amount of the decree held against him by Brij Bhukan Lal and ors. THE lower Court has refused this application, and from the order of the lower Court this appeal has been preferred.

(2.) IN our opinion the application of Chajmal Das was premature. Section 246 of the Civil P. C. clearly contemplates that when a decree is sought to be set-off against another, the decree against which the set-off is asked for must be before the Court for execution. This is evident from the position of Section 246 in the Code. Chap. XIX, in which the section appears, relates to "the execution of decrees," and the sub-head E, under which Section 246 occurs, provides "the mode of Execution of decrees." It was observed by their Lordships of the Privy Council in Rewa Mahton V/s. Ram Kishen Singh (1886) L.R. 13 I.A. 106 that the Court before which cross-decrees may be produced "is the Court to which the application is made for execution, and which is dealing with the case as to whether execution shall be issued or not." These observations of their Lordships leave no room for doubt that the decree against which a set-off is claimed must be before the Court for execution. As the decree of Brij Bhukan Lal against Chajmal Das was not before the Court for execution, Chajmal Das was not entitled to claim a set-off under Section 246, and his application was premature. On this ground alone his application ought to have been dismissed. The result is that we affirm the order of the Court below and dismiss this appeal with costs.