TARLADA KRISHNA RAO Vs. GONTI BAIRAGI

JUDGEMENT

(1.) The question in this appeal is whether a set-off can be pleaded in execution proceedings.

(2.) In O.S. No. 41 of 1932 of the Court of the Subordinate Judge of Berhampore,. the appellants sued the respondents to enforce a mortgage. On the 28 March, 1935 they obtained a preliminary decree for the payment of Rs. 6,539-4-0. On the 5 December, 1938 a final decree was passed for the same amount. The respondents then applied under the provisions of the Madras Agriculturists Relief Act for the scaling down of the decree. On the 21 September, 1939, they obtained an order scaling down the decree to Rs. 2,581-7-0.

(3.) The properties mortgaged consisted of agricultural lands which the respondents had leased to tenants. On the 16 April, 1934, that is, before the preliminary decree was passed, the appellants applied for the appointment of a receiver to collect the rents due. The tenants refused to attorn to the receiver and the 6nly course open to him was to file suits to recover the amounts due. The appellants failed to put the receiver in funds necessary for the institution of such suits and consequently the receiver took no action. On the 8 January, 1943, that is, over four years after the final decree had been obtained, the respondents applied to the Court to discharge the receiver and their application was granted.