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Judgment
Chandra Reddy, J.—This appeal is brought by some of the judgment-debtors (Defendants lto6)'' in O. S. No. 8 of 1939 from the order of the Subordinate Judge, Narasapur, declining to set off a cross-decree obtained by them and some others against the predecessors-in-interest of the Respondent.
The facts leading up to this appeal may be briefly stated. One Alluri Atchayya obtained a judgment against the Appellants and several others for past and future maintenance. The decree-holders put the decree in execution and collected several sums of money from the judgment-debtor and there was a balance of . Rs. 2087-11-3 on the relevant day. Meanwhile, AH''hayya died leaving behind her three daughters, tin: Respondents herein. The judgment-debtor deposited this sum of Rs. 2087-11-3 and attached it in execution of the decree for costs which they Defendant had against the above-mentioned Atchayya in the following circumstances:
Atchayya and another Venkatanarasim-haraju filed O. S. No. 12 of 1040 in forma pauperis for partition of some properties mentioned therein into three equal shares and for separate possession of one such share with past and future mesne profits. The suit was dismissed by the trial Court with separate sets of costs, one to Defendants 1 to 12 and another to Defendants 21 to 23. This matter was carried in appeal by the Plaintiffs to the High Court. The appeal was dismissed by the appellate Court which directed the Appellants to pay a consolidated amount of Rs. 1020, by way of costs of the Respondent;; (Defendants 1 '' to 12 and Defendants 21 to 23).
The Appellants and Defendants 7 to 12 claimed relief in respect of these costs by attaching the decree in O. S. No, 8 of 1930 and by asking for a set-off the amount due by them to the Respondents. The steps taken by them earlier to realise these costs will be referred to presently. It may be stated here that the execution petition filed by the Respondents is K. P. No. 74 of 1948, while that by the Appellants is E. P. No. 21 of 1950.
This request of the Appellants was opposed on two grounds; (1) their decree became barred by time: and (2) the set-off was not permissible as the Respondents were neither the judgment-debtors nor their assignees within the meaning of Order 21, Rule 18, Code of CPC (CPC). The trial Court while holding against the Respondents on the first issue gave a finding in, their favour on the second point. In the result, the relief asked for by the Defendants 1 to 12 was disallowed and their E. P. was dismissed. It is this order that is under appeal.
In support of this appeal, it is argued by Mr. Surya Rao that the conclusion of the trial Court that his clients could not claim set-off is erroneous, while it is maintained by the Respondents that the order of the trial Court is unassailable.
The provision of law that governs this matter is Order 21, Rule 18, Code of CPC (CPC), and it may be usefully set out:
(1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two suras of money passed between the same parties and capable of execution at the same time by such Court, then-
(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.
The other sub-rules are not relevant and need not be extracted here.
The contention of Mr. Ramachandraraju for the Respondents is that the Appellants cannot, invoke Sub-rule 2 as the Respondents are neither decree-holders nor their assignees. On the other hand, Mr, Surya Rao urges that even if that sub-rule is inapplicable a Court should allow a set-off in the circumstances of this case. The contention of the Appellants seems to be substantial. It looks to me that even if the instant case does not fall within the terms of Sub-rule 2 of ft. 18 a Court can grant equitable reliefs. De hors the provisions of this rule, there is inherent jurisdiction in a Court to allow a set-off where a judgment-debtor has a cross-decree against the estate of his decree-holder. The legal representatives of a decree-holder are answerable for the claims against the estates of their predecessor-in-interest to the extent of assets in their hands. This view gains some support from decided cases.
In Chinnammal v. Chidambara AIR 1938 Mad 626 (A), a Bench of the Madras High Court consisting of Venkatasubbarao and Cornish J.L, decided that when the claims of the decree-holder and the judgment-debtor were in the nature of cross-demands arising out of the same transaction, the Courts could allow equitable set-off even if they fell outside the provisions of Order 21, Rule 19, CPC (CPC). There, a decree for specific performance was granted on condition that the Plaintiff should deposit a specified sum of money within a particular period. Thereafter the Defendant was required to execute a sale deed in favour of the Plaintiff. The deposit was made by the Plaintiff within the time limited deducting the amount of costs awarded to her by the decree,, etc. Objection was taken by the Defendant that the Plaintiff could not deduct the amount due to him by way of costs, as the decree gave him the right to demand the conveyance of the property only on depositing the purchase money. In negativing this objection, the learned Judges observed as follows:
First, as to the costs expressly payable to the Appellant under the decree, the matter stands thus: she could have brought into Court the full amount of Rs. 500 and simultaneously attached a portion of that sum for realising the costs due to herself. That would be a needless and idle formality to observe.
The same view was taken by the Calcutta High Court in Krishna Chandra Bhoumick Vs. Pabna Dhanabhandar Co. Ltd., ; and Bank of Dacca, Ltd. Vs. Gour Gopal Saha, . The opinion expressed by the Lahore High Court in Badrinath v. Motiram, AIR 1939 85 (D), accords with this view. Although the Madras case and other cases cited above considered only the applicability of Order 21, Rule 19, Code of Civil Procedure, think the principle embodied therein applies with equal force to cases of cross-decree. To borrow the words of Venkatasubba Rao J., it would be a needless formality for the judgment-debtor having cross-decree against the decree holders to deposit the whole amount due to the latter and then attach it. That apart, in this case the statement of facts contained in the order shows that the Appellants have asked for attachment of the decree in O. S. No. 8 of 1939. Even if they are denied the right of set-off. it is open to them to realise the amount due to them in execution proceedings and they have already attached that decree. In any view of the matter the trial Court was not right in dismissing the execution petition.
Since the finding of the trial Court on the other point is canvassed by Mr. Ramachandraraju, I shall now consider whether the decree in favour of the Appellants and other Defendants was time-barred on the relevant date. The reasons adduced by Mr. Raju in "support of his contention are: (1) that the earlier execution petitions filed by the Appellants were not in accordance with law and so the present E. P., was not maintainable and (2) the High Court decree for costs was inexecut-able as the present execution proceedings were started more than three years of that decree and as the one previously filed in the Court of the District Munsif, Rajole, hi which the deerec for costs granted by the trial Court, was transferred for execution was not in accordance with law.
On the first question, the argument of Mr. Ramachandraraju is that as the Defendants 1 and 12 alone filed the earlier execution petitions and the permission of the Court was not obtained to execute the joint decree they could not be treated as steps-in-aid of execution and therefore the decree was no longer alive. According to him, under Order 21, Rule 15 (2), an application for execution by some of the joint decree-holders will be invalid if the leave of the Court for that purpose is not obtained. There does not seem to be much force in this contention. Order 21, Rule 15, recites:
Where a decree has been passed jointly .in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.
The question for consideration is whether failure to obtain the permission of the Court to execute a joint decree vitiates the execution proceedings. There does not seem to be any warrant for the stand taken by the Respondents either in the provisions of law or on authority. Sub-rule 1 permit-; the execution of a joint decree by one of the decree-holders for the benefit of them all. What is contemplated by Sub-rule 2 is that in case the Court is inclined for sufficient cause to allow the execution by one of the decree-holders it should make sufficient safeguard for the interests of the decree-holders who have not joined the E. P.
This rule does not indicate that the omission to mention that it is for the benefit of the decree-holders invalidates the whole proceedings. In my t opinion, it is not absolutely necessary that the frames of all the decree-holders should be mentioned or that there should be a recital that it is g being executed for the benefit of all the judgment-& creditors. There is authority for this position in Rani Veerammani Vs. Rajaveerabasava Chikka Royal and Others, . This question came up It for consideration in other High Courts also. In Nuzhat-ud-Dowla v. Beni Madhaw, AIR 1926 Cal 811 (P). a Bench of the Calcutta High Court held that comission on the part of a decree-holder to Mention in the execution petition the names of all Hpine decree-holders was not such a defect as would Mtovalldate the execution proceedings.
The view taken in Madhav Prabhakar Oka Vs. Balaji Govind Joshi, ; and Shankar Hari Deshpande v. Damc-dar Vyankoji, AIR 1942 Bom 29 (H), is in accordance with this rule. To the same effect are the rulings of the Lahore and Allahabad High Courts in Ghanaya Lal v. Madho Parshad, AIR 1931 Lah 600 (I); and Dharamdeo Rai Vs. Jwala Prasad and Another . It follows that the earlier applications even if they did not mention the names of all the decree-holders or state that- it was for the benefit of the decree-holders, they could not be regarded as invalid ones. They would serve as steps-in-aid of the execution to keep the decree in force.
Even on facts, the contention of the Respondent seems to be without any force. It is found by the Subordinate Judge that the Petitioners in the lower Court sought the permission of the Court in the earlier execution petition to execute the decree on behalf of and for the benefit of the decree-holders. Mr. Ramachandraraju could not show this finding to be incorrect. This contention therefore fails and is rejected.
This leads me to the question whether the decree for costs made by the High Court was dead on the date of die present E. P. for the reasons adduced by the Respondents and set out here-under. The facts giving rise to this contention are the following:
After O. S. No. 12 of 1940 was dismissed by the Subordinate Judge, Narasapur, with costs of the Defendants the latter took out execution and had the decree transmitted to the District Munsif''s Court, Rajole. They filed E. P No. 166 of 1948. This was dismissed on 13th August. 1945. The High Court''s decree awarding costs dismissing the appeal of Atchayya and Venkatanarasim-haraju and giving costs to the Respondents therein was passed on 15th July, 1946. The Defendants filed another execution petition in the executing Court, this time including the costs granted to them in the High Court.
This petition was unnumbered and was rejected on 30th April, 1948, because the decree-holders failed to furnish a copy of the decree of the High Court. It is this E. P. that is relied on by the Appellants as a step-in-aid of the execution of the High Court decree. They then got the decree re-transferred to the parent Court and filed the present execution petition on 14th February, 1950. What is submitted by the counsel for the Respondents is that the said E. P. of 1948, could not have the effect of saving limitation since the decree was not first executed in the Court of the Subordinate Judge of Narasapur.
The District Munsif, Rajole, could get jurisdiction to execute it only if it was transferred to his Court by Sub-Court. It seems to me that it cannot be given effect to. When once a decree is transferred to another Court for execution, the latter Court has all the powers of the Court which passed the decree and it retains the jurisdiction to execute it until it certifies to the original Court that it has fully executed it or its inability to execute it stating the circumstances attending such failure. In this case, the executing Court had not certified under Section41, CPC (CPC), and therefore it retained'' the power to execute the decree.
The effect of Section 37, CPC (CPC), is that the proper Court to execute a decree either passed by the Court for First Appeal or by the High Court in the Second Appeal is the Court of first instance. So, in any case, it is only the trial Court that is empowered to execute a decree even when it has been affirmed by either the first or the second appellate Court. In the present case, the question for consideration is, when a decree has been passed by an appellate Court either in modification of the decree of the trial Court or in affirmance of it, is it necessary to apply to the Court of the first instance to transmit afresh the decree of the appellate Court?
In my opinion, it is not necessary because the executing Court is in seisin of the execution and therefore exercises all the powers of the Court that passed the decree and could execute th0 appellate decree without any fresh order of transmission. The execution could not be defeated merely because no fresh order was made after the trial Court''s decree was affirmed. In the case of a decree of affirmance, the costs arc only superadded.
This conclusion of mine is .supported by a Bench ruling of the Patna IlijAh Cmiri in Ekram Hussain Vs. Mt. Umatul Rasul and Others, , and by the judgment of Mr. Justice Panchapagesa Sastry in SatyiMmrayana v. Sitaramasastry, 1950 1 Mad LJ (SN) 1 (L), where it was decided by the learned Judge that in the circumstances as the present, it was not essential to enable the decree-holder to execute the decree to have another order of transfer of decree made. Therefore, the argument of the Respondent on this branch also is without substance and is overruled.
On this discussion, it follows that the decree in favour of the decree-holders was alive on the date they sought execution [hereof and are consequently entitled to claim a set-off the relief will be limited to the interest of the Appellants hi the decrees in question. The appeal is allowed with costs and the order of the trial Court is set aside.
It is agreed by both the counsel that the proportionate share in both the decrees of the Appellants is Rs. 614-3-11.