HEMENDRA NATH Vs. TULSHI SINGH

JUDGEMENT

(1.) The grounds of appeal here are covered by authority. A decree was passed for possession on condition of the plaintiffs depositing in Court Rs. 352 within three months of the decree becoming final. At the same time the plaintiffs were allowed costs and Rs. 15 per mensem mesne profits from the date of the decree to the date of the delivery of possession. On 18 September 1928, they put in a declaration that they had made the payment by setting it off against the sum of Rs. 354-12-8 due to themselves for costs and mesne profits and desired that their own decree for Rs. 2-12-8 be executed. The objection of the judgment-debtors was that the suit should be taken to have been dismissed because the sum which the plaintiffs were directed to deposit was not deposited within three months of 23 April 1928. This objection is in conflict with the terms of the decree. The words used are not three months from the date of the decree but three months from the date of this decree becoming final. It is obvious, therefore, that the Court meant some date other than the date of the decree. It was argued that the decree became final on the date of the decree, because no appeal was lodged. The answer to that is contained in a Bench ruling of this Court in Sanoman Singh V/s. Raja Ram . It was held there that even where there was no appeal a decree became final after the period allowed for appeal. The deposit, therefore, was within time.

(2.) The other objection was that there should have been actually deposited by the plaintiffs Rs. 352 and money due to the plaintiffs could not be set off. I think that the analogy of the provisions of Order 21, Rule 19(2) may be applied here. In 1894 when the previous Civil Procedure Code was in operation and Section 247 corresponded to Order 21, Rule 19, a Bench of this Court pointed out in Bhagwan Singh V/s. Ratan [1894] 16 All. 395 (at 397) that; the object of Section 217 is to prevent each side executing a decree in respect of amounts due whether for costs or otherwise, "under the same decree.

(3.) In pre-emption suits this rule has always been applied by the Court. The law on the subject of a pre-emption decree is summarised in Ram Lagan Pande v. Mohammad Ishaq Khan [1920] 18 A.L.J. 162. When the rule is applied to preemption decrees it may be applied to a decree like the present on the same principle.