HAZARIRAM MARWARI Vs. BANSIDHAR DHANDHANIA

JUDGEMENT

(1.) The question in this appeal is whether under Rr. 18 and 20 of O. 21, in Sch. 1, to the Civil PC, there can be a set-off in execution proceedings of two decrees hereunder mentioned. The High Court at Patna have allowed the set-off (6 February 1933), after the Subordinate Judge of Godda had refused it (11 April 1931). The decrees in question are, first, a decree for mesne profits dated 15 January 1924, of which the present appellants took an assignment on 12 December 1925 ; secondly, a final decree for sale dated 18th December 1925. Both decrees were transferred to the Court of the Subordinate Judge at Godda for execution.

(2.) The history of the matter may be out-lined as follows : One Thakur Barham was the proprietor of an estate in the Santal Perganas called Patsanda. He borrowed money from certain persons at whose instance in July 1904, six annas interest in Patsanda was sold in execution of a decree and bought as to two annas by Srimoan, the father of the respondent Kedarnath, as to three annas by the husband of the respondent Teji Bibi, and as to one anna by the respondent Nopechand and his brother Chaturi Ram, since deceased. The first and third of these purchases were made on behalf of the joint Hindu family of the auction-purchaser and not on his individual account. Respondents 1 to 16 in this appeal to His Majesty represent all the persons on whose account these purchases were made. Unfortunately there were two six anna shares in Patsanda belonging to Thakur Barham, one heavily mortgaged and the other comparatively free. The former was the interest which had been attached, but the sale certificate was granted in respect of the other, and the auction- purchasers went into possession thereof. While so in possession they discharged two security bonds given on 10 November 1902, by Thakur Barham, charging two annas and one anna respectively of Patsanda in favour of one Gobardhan Das. In 1913 the sale of July 1904, was set aside as being invalid by reason that the interest sold was not the same as the interest attached: cf. 41 IA 38.1This gave rise to restitution proceedings under S. 144 of the Code which were carried up to this Board, 49 IA 351,2where in June 1922, the auction- purchasers were held entitled to set-off the amount of their deposit against the mesne profits, but the High Court at Patna were held to have been right in refusing their claim to set-off the sums paid in discharge of the bonds to Gobardhan Das.

(3.) After some further litigation the matter was settled by the first of the two decrees now in question, viz., the compromise decree of 15 January 1924, of which the appellants are assignees. That decree, while binding upon the present respondents 1 to 16, so far as regards recovery of 5? annas share of Patsanda, is nevertheless, so far as mesne profits are concerned, against three only, viz., Kedarnath, Teji Bibi and Nopechand, who are specially described in the cause title as the auction-purchasers. The sums decreed amount to Rs. 81,398. Against this decree for mesne profits the High Court have set-off a decree which has resulted from a suit, No. 2 of 1917, brought by members of the families interested in the auction purchase of July 1904, to recover from the representatives of Thakur Barham and from the interest in Patsanda charged to Gobardhan Das, the sums expended in discharging the two bonds of 10 November 1902. By his judgment, dated 28 February 1925, the learned Additional Subordinate Judge of Bhaghalpur found for the plaintiffs, holding that they had both a right to reimbursement and a charge upon the property, neither right being barred by the Limitation Act. The formal decree of 28 February 1925, is not before their Lordships, but the final decree dated 18 December 1925 directs a sum exceeding Rs. 86,000 to be realised by sale of the property charged, and this is the decree which has been set-off. Respondents 1 to 16 represent all the holders of this decree. In the High Court of Patna the view taken by Noor, J., who gave the judgment (the learned Chief Justice concurring), may be summarised by saying that the two decrees relate to the same transaction and that "the judgment-debtors of the one are in substance exactly the decree-holders of the other and vice versa" because all the present respondents 1 to 16 were in substance and as between themselves auction-purchasers whose possession was ultimately set aside. He rejected the contention that R. 20 of O. 21 applies only when both decrees are mortgage decrees, but considered that a mortgage decree could only be set-off in cases where a personal obligation to repay existed and a remedy by personal decree was still available. He held on the facts that the remedy by personal decree was not in this case barred.