VESUDEVAN NAMBOORI Vs. KARAPPAN
HIGH COURT OF KERALA
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(1.) The short point arising for determination in this second appeal is whether set off could be allowed in execution apart from O.21 R.18 and 19 by exercise of the inherent jurisdiction of court under S.151 of the Code of Civil Procedure.
(2.) The facts are simple. On the plaintiff, decree holder seeking to execute his decree for recovery of monies the 9th defendant judgment debtor applied to set off an amount which had been granted as costs in his favour against the plaintiff in proceedings for setting aside a sale in execution under O.21 R.90 C.P.C. That order for costs was dated 18.3.1122 within 3 years of the date of the execution application filed by the plaintiff. The decree holder contended that the costs in respect of which a set off was claimed arose in interlocutory proceedings which had nothing to do with the decree and that therefore the set off was not to be allowed. The executing court rejected the objection and allowed set off. This order was confirmed in appeal before the District Court and the decree holder has come up in the second appeal reiterating his objection.
(3.) There has been some controversy as to whether the provisions in the Code of Civil Procedure in regard to set off in execution as contained in O.21 R.18 and 19 is exhaustive of the matter and do not allow the exercise of inherent jurisdiction where the provisions do not in terms apply. In the case in Shankar Das v. Amrit Lal, AIR 1932 Lahore 537, relied on by the special appellants learned Counsel, a receiver had been appointed in a partition suit between A and B. B applied for removal of the receiver and succeeded and was awarded a sum as costs against A. A was successful in the partition suit and was awarded costs against B. When the transferee of Bs decree sought to execute his decree for costs, A wanted to set off part of his decree against B. It was held that no set off could be allowed as O.21 R.18 did not apply to the facts and further that where set off could not be allowed as O.21 R.18, it was not possible to allow it under S.151, and reliance was placed on Gokul Mandar v. Pudmanund Singh, ILR (29) Cal. 707, where the Privy Council had stated that the essence of a Code was to be exhaustive on the matters in respect of which it declared the law and it was not the province of a Judge to go outside the letter of the enactment according to its true construction. Appellants learned Counsel referred also to Subramonia Pattar v. Viswanatha Pattar, 35 Cochin Law Reports 414, and a few other cases. In a later case in the Lahore High Court, Badri Nath v. Moti Ram, AIR 1939 Lahore 85, referred to by the special respondents learned Counsel, a set off was claimed by the judgment debtor in respect of an amount which had been awarded as costs to him in an interlocutory matter pending suit, as against the decree amount claimed by the decree holder under execution. Execution in respect of costs had become barred by time. The judgment debtor was allowed to claim the amount by way of set off, and reliance was placed by the Court on Mt. Nonibai v. Jethanand, AIR 1938 Sind 31, where it was held that a Court has inherent power to allow set off apart from the provisions of O.21 R.18 and 19 C.P.C. This Sind case had referred to Ramu Sahu v. Thakur Dayal Rai, AIR 1917 Patna 259, Nubo Lall Khan v. Maharanee of Burdwan, 9 W.R. 590, Krishna Chandra v. Pabna Dbanabhandar Co., AIR 1935 Cal. 225 and Chinnamal v. Chidambara Kothanar, AIR 1936 Mad. 626 , for purpose of holding that R.18 and 19 do not exhaust the cases in which set off can be allowed in execution proceedings and the court had inherent jurisdiction on equitable principles to allow set off of claim arising at different stages in the same suit or proceedings and this even if the right to recover the claim sought to be set off is barred by limitation.;
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