RAM CHANDER UPADHYA Vs. MAHABIR SINGH

JUDGEMENT

(1.) THE facts connected with this appeal are as follows: THEre had been a decree for sale of certain property. One Ram Chander and his son were the plaintiffs. THEre were 15 defendants including defendants Nos. 2-10 (Mahabir Saran and others). THE defendants Nos. 2 to 10 (i.e., Mahabir Saran and others) had also obtained a decree for sale of certain mortgaged property against Ram Chander, his sou and six other persons. THE defendants were not common to both suits. It so happened that applications for execution of each decree were pending at the same time in the same Court. THEreupon Ram Chander and his son prayed that the amount of the decree of Mahabir Saran and others should be set off against their decree. THE Court below held that this could not be done. THE decree of Mahabir Saran and others is a complicated decree and we think under no possible circumstances could it have been set off. Order XXI, Rule 18, provides that "Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, the decrees can be set off one against the other." Clause (4) is as follows: "THE holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons." It thus appears that it is only by virtue of Clause (4) that in the case of ordinary money decrees there could be a set-off where the parties are not the same, Clause (4), however, permits a setoff oven where the parties are not identical but only when the decree is a "joint" and "sereral" decree. Rule 20 provides that the provisions contained in Rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge. This is a new rule which has been added to the present Code. It seems to us somewhat difficult to understand how the provisions of Order XXI, Rules 18 and 19, will be administered as applying to mortgage-decrees particularly in cases like the present when there is no personal liability. A mortgage-decree merely directs the sale of mortgaged property in the event of the mortgage money not being deposited. We may point out that in many eases the value of a mortgage-decree depends not on its face value, that is, the amount found due, but on the value of the property directed to be sold. It might so happen that a decree declaring that a lakh of rupees was due might be of less actual value than a decree declaring Rs. 5,000 due on other property; all depends on the value of the property ordered to be sold. We, however, have not to consider the case of setting off of two mortgage decrees between the same parties. It is quite clear that there cannot be a set-off in the present case unless the decree can be said to be a decree "jointly" and "severally" against Ram Chander, his son and the other defendants. It seems to us that a mortgage-decree can never be said to be a "joint" and "several" decree within the meaning of that expression in Order XXI, Rule 18 (Clause 4). What is meant by a "joint" and "several" decree in that clause is we think illustrated by illustration (g) at the foot of the Clause We dismiss the appeal with costs, including in this Court fees on the higher scale.