NACHIMUTHU CHETTY Vs. PALANI AMMAL

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises out of an order passed in execution of a mortgage decree obtained by the appellant in O.S. No. 195 of 1937 against the respondent Palani Ammal. The appellant sought to execute the mortgage decree in E.P.R. No. 739 of 1941 on the file of the District Munsiff's Court of Erode. Thereupon the respondent Palani Ammal filed C.M.P. No. 1521 of 1941 praying that the entire amount of the decree in O.S. No. 195 of 1937 in which she was the judgment-debtor might be set off against a larger sum which was decreed to her in O.S. No. 136 of 1938. The application was allowed by both the lower Courts and hence this appeal.

(2.) Palani Ammal obtained a money decree in O.S. No. 136 of 1938 (to be more accurate the decree in her suit was passed by the High Court in S.A. No. 431 of 1940) and the decree that was passed in her favour was for a sum of Rs. 497-15-0. The mortgage decree which the appellant obtained against the respondent was., for a sum of Rs. 440. The respondent wanted that instead of executing her decree against the appellant for Rs. 497-15-0 the entire amount of the decree against her, namely, Rs. 440 might be set off and this was allowed by both the lower Courts.

(3.) In second appeal it is urged that the decree which the appellant has obtained against the respondent in O.S. No. 195 of 1937 was only against certain properties in the hands of the respondent and that it did not contain a personal decreeagainst her and that, therefore, the provisions of Order 21, Rules 18 to 20 did not apply. Reliance is placed upon a decision of this Court in Venkatareddi V/s. Doraiswami Pillai and upon the decision of the Judicial Committee in Hazariram V/s. Bansidhar (1937) 1 M.L.J. 254 : L.R. 64 I.A. 67 : I.L.R. 16 Pat. 127 (P.C.). As pointed out by Ramesam, J., in Venkatareddi V/s. Doraiswami Pillai (1932) 63 M.L.J. 793 : I.L.R. 56 Mad, 339 at 341, if the person, who seeks the emedy by way of set off is the mortgagee- decree-holder and he obtains a decree only against the property in the hands of the other party it may be that the other party the mortgagor, who has obtained a money decree presumably for a larger sum may well be content to say that the decree against the property in his; hands may foe executed and that the property might fetch a very small sum. If the real value of the property against which the mortgage decree was passed is worth very much less than the amount of the mortgage decree and there is no personal decree against the mortgagor it will be inequitable to allow the mortgagee decree-holder who could, in case he was allowed to execute his own decree, get only say a sum of Rs. 100 to claim set off for the entire decree amount which might be for a considerably larger sum, say Rs. 900. If the amount of the mortgage decree is according to the illustration that I put as much as Rs. 900 and the property against which he got a decree is worth Rs. 100 and there is no personal decree, even if the two decree-holders are allowed to proceed independently by way of executing their decrees separately, the mortgagee-decree-holder would get only Rs. 100 whereas if the set off that he claimed was allowed he would be getting the benefit of a deduction of Rs. 900 as against the money decree-holder. It is in such a case that Ramesam, J., who delivered the leading judgment in Venkatareddi V/s. Doraiswami Pillai 1, held that the mortgagee-decree-holder has no right to set off. But it is pointed out in that very decision that if the mortgagee-decree-holder had a personal remedy against the mortgagor then there would be no reason for refusing such a mortgagee-decree-holder to set off the entire amount of his decree because even if the property may not fetch as much as the decree amount, still he has a right to proceed against the mortgager personally for the deficit.