ABDUL KAREEM SAHIB Vs. MUHAMMAD KHADER KHAN

JUDGEMENT

(1.) The question for decision in this second appeal is one of limitation, and it arises from the construction of the decree of the Subordinate Judge of Coconada in A.S. No. 138 of 1936. The short facts are that the appellants who were the defendants in O.S. No. 361 of 1933 on the file of the District Munsiff's Court, Coconada, were directed by that Court to pay a sum of Rs. 123-5-0 as costs to the plaintiff-respondent. On appeal, a conditional decree was passed in the following terms: (1) If the appellants (defendants) pay to respondent (plaintiff) within three months from this date Rs. 800 plus interest at six per cent, per annum on Rs. 1,400 from 10 January, 192a to 28 August, 1924 and interest on Rs. 800 at the same rate from 28 August 1924 till date of payment, the appellant shall retain possession of the house and the suit do stand dismissed, (2) that if the payment is not made within three months, the respondent (plaintiff) be entitled to pay Rs. 600 to the appellant (defendants) within a period of further three months and do recover possession of the house and that if the amount is not so paid the suit do stand dismissed, and that each party do bear his or their own costs in appeal as well as in suit. No memorandum of costs filed by the respondent. The appellants did not pay Rs. 800 and interest within the three months allowed by the decree ; but pending the appeal before the Subordinate Judge the appellants had paid the costs decreed against them in Court, and the respondent had withdrawn that amount. The appellate decree is dated 6 December, 1939 and the present application out of which this second appeal arises was filed on 5 March, 1943, for restitution under Section 144 of the Civil P. C. of the sum of Rs. 123 and odd paid by the appellants as costs to the respondent.

(2.) More than three years have elapsed after the decree of the appellate Court, and therefore prima facie the application is barred by limitation ; but Mr. Balaparameswari Rao contends that the decree does not permit him to execute and recover the sum of Rs. 123 and odd until the expiry of the three months from its date. According to him, Order 21, Rule 29 of the Civil P. C. which relates to the execution of cross decrees has to be applied to the facts of the case. The argument is put this way. If the appellants want to execute the decree they can deduct the sum of Rs. 123 and odd out of the sum of Rs. 800, deposit only the balance amount and seek for recovery of possession of the house. Since they are entitled to deduct the sum of Rs. 123 and odd under Order 21, Rule 29, the decree for recovering that sum of money cannot be executed without first availing themselves of that power, and therefore they get three years and three months from 6 December, 1939, for asking for restitution of the money paid as costs. In support of this argument two decisions of this Court are relied upon. The first of them is Damodar Shanbhogue V/s. Gauge (1938) 1 M.L.J. 417. On a careful reading of this decision, it is apparent that all that it lays down is that if there are two cross-decrees in one and the same composite decree the decree-holder and judgment-debtor need not be in the same position or that the remedy of each party against the other need not be of the same nature in order that the provision under Order 21, Rule 29 may be applied. The other decision in Chinnammal v. Chidambara Kothanar (1936) 71 M.L.J. 506 is also to the same effect. The present case is a converse one. It is therefore possible for the appellants to deposit a sum of money arrived at after deducting Rs. 123 and odd from Rs. 800 and thereafter recover possession of the property. This can be done even the day after the appellate decree was passed. It may be, but I do not desire to express a final view on this point, that the respondent may get three years and three months to execute that portion of the decree contained in the second clause on the failure of the appellants to take advantage of the first clause in their favour.

(3.) The last portion of the decree relating to each party bearing his or their own costs is an independent provision. It is not dependent upon any of the earlier provisions, and that being so, the appellants ought to have executed that portion within three years from the 6 December, 1939, and not having done so, this application is barred by limitation.