RAJMAN RAM Vs. SARJU PRASAD

JUDGEMENT

(1.) THIS is an execution second appeal by Rajman Ram, applicant, whose application in execution has been dismissed in toto by the learned District Judge. Rajman held a decree No. 202 of 1930 for Rs. 860-8-0 against Jawahir Lal and Gaya Lal. Jawahir Lal and Gaya Lal held a decree No. 108 of 1927 for Rs. 486 against Sarju Prasad and Ram Narain. The present application was made after attachment of that decree by Rajmsui, and Rajman applied for execution of that decree No. 108. The mode in which he asked for execution was that out of Rupees 1,555-2-4 which was kept in deposit in favour of the judgment-debtor in Suit No. 438 of 1928 on 4 May 1931 might be attached and the total amount of decree No. 108 paid to Rajman. Now Sarju Prasad and Ram Narain had a decree : No. 58 of 1927 for Rs. 2805 against Jawahir Lal and Gaya Lal. They claimed that they had a right to set off the smaller deorees against them under the provisions of Order 21, Rule 18, and the lower appellate Court was correct in holding that they had this right. Where there are cross decrees under Order 21, Rule 18, a smaller decree must always be set off against the larger decree, and if the smaller decree is attached by some other decree-holder, that other decree-holder has no greater right than the decree-holder whose decree has been attached and the attaching decree-holder cannot claim that he has a right to execute the smaller decree in spite of the existence of a larger decree held by the judgment-debtor. In other words, the rule laid down by Order 21, Rule 18 must be first applied before any question can arise for rateable distribution under Section 73. Therefore so far as the decree No. 108 of 1927 is concerned, that decree has merged in the larger decree held by Sarju Prasad and Ram Narain, and therefore decree No. 108 of 1927 cannot be executed against them.

(2.) A sum of Rs. 1,555 odd was in Court in favour of Jawahir Lal and Gaya Lal, and on 24 June 1931 Sarju Prasad and Ram Narain in execution of their decree No. 58 attached this sum which lay in deposit and a voucher was issued in the name of their pleader. This fact gave rise to the allegation of Rajman that the money had become the money of the judgment-debtors in decree No. 108, that is Sarju Prasad and Ram Narain. We think that he was mistaken in his attempt to treat this sum of money as money which could be seized in execution of the decree No 108, but we think that as he obtained attachment of this sum on an application of 19 August 1931 and as the money was still in Court, therefore, Rajman is entitled to claim rateable distribution of this amount under Section 73, Civil P.C. Rajman has his decree No. 202 against Jawahir Lal and Gaya Lal for Rs. 860 odd. Sarju Prasad and Ram Narain have their decree also against Jawahir Lal and Gaya Lal No. 58, for Rs. 2,805. Of this latter amount the amount of the decree No. 108 against Sarju Prasad and Ram Narain must be deducted and the resulting amount of about Rs. 2,300 will be the amount of the decree of Sarju Prasad and Ram Narain which has not yet been satisfied. We consider therefore that Rajman on the one hand and Sarju Prasad and Ram Narain on the other are decree- holders of different decrees against the same judgment-debtors Jawahir Lal and Gaya Lal to whose credit this item of Rs. 1,555-2-4 stood in the Court. We consider therefore that these two decree-holders are entitled to rateable distribution of this amount. Accordingly we allow this appeal to this extent, and as it is possible that there may be other decree, holders who may claim a share of rateable distribution we direct that our decree should be sent to the execution Court for carrying out the directions which we have given. Proportionate costs are allowed to the parties.