DUVVDA BALAKRISHNAMMA CHOUDURY Vs. DUWADA KAMESAM CHOUDURY
HIGH COURT OF ANDHRA PRADESH
DUVVDA BALAKRISHNAMMA CHOUDURY
DUWADA KAMESAM CHOUDURY
Referred Judgements :-
NAGAR MAILV. RAMCHAND
BURMA OIL CO. V MA TIN
HAZARIRAM MARWARI V. BANSIDHAR DHANDHANIA
VENKAIA REDDI V. DORAISWAMI PILLAI
KRISHNA CHARAN BHOWMICK V. PATNA DHANA BHANDAR
NACHIMUTHU CHETTY V. PALANI AMMAL
SHEA SHANKAR V. CHUNI LAL
BANK OF DACCA, LTD VS. GOUR GOPAL SAHA
MOHAMMAD TAHAR VS. MTINTIZAR FATIMA
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Bhimasankaram, J. -
(1.)These two Civil Miscellaneous Appeals arise out of the
two E. P. Nos. 54 and 55 of 1952 in O.S. No. 64 of 1945 and O.S. No. 58 of 1949
respectively on the file of the Court of the Subordinate Judge of Srikakulam. The
petitioners in both E. Ps. (respondents in both the appeals) who are the legal
representatives of one Hari Krishnamma sought to set off two decrees in O.S. Nos. 64
of 1945 and 58 of 1949 in their favour against the amount due from them to their
judgmcnt-debtors (one Balakrishnamma and his sons) under the decree in O.S.
No. 47 of 1915. The respondents are liable to pay an amount of Rs. 7,243-13-4
by 23rd of November, 1946 to the appellants. Under the decrees in O.S. No.
64 of 1945 and O.S. No. 58 of 1949 the appellants owed the respondents Rs. 2,496
towards mesne profits and Rs. 1,429-4-0 towards costs in O.S. No. 64 of 1945 and
an amount of Rs. 5,400 plus an amount of Rs. 853-14-0 for costs in O.S. No. 58
of 1949. The decree in O.S. No. 47 of 1915 is a decree against the respondents
in their capacity as the legal representatives of Hari Krishnamma, and as such,
of course, limited to the assets of the deceased available in their hands while the
decrees in O.S. No. 64 of 1945 and O.S. No. 58 of 1949 are ordinary decrees for
money. The lower Court has allowed the set-off claimed and the appellants against
whom that claim was allowed, impugn the correctness of the lower Court's order.
(2.)In the first place, Mr. Venkatesam, learned counsel for the appellants contends
that appeals against the decrees in O.S. Nos. 64 of 1945 and 58 of 1949 are pending
in this Court, that the decrees have not become final and that in the circumstances
the set-off should not be allowed, at any rate, without security being taken from
the respondents under Order 41, rule 6 of the Code of Civil Procedure. It is
frankly conceded by him however that no such direction was sought from the lower
Court. Mr. Venkatesam however says that as the appeals are now pending in
this Court, we may as well pass the necessary order. We are not however
prepared to do so. The appeals themselves are not now before us. It is true that
they are pending in this Court; but the matter should be properly considered
only in interlocutory applications made in the respective appeals. Further Order
41, rule 6, Civil Procedure Code, provides for direction as to security being made
only on sufficient cause being shown by the appellant. A mere request for such a
relief cannot, in our opinion, constitute " sufficient cause " within the meaning
of that phrase. The appellants may, if so advised, take out appropriate applications
in the appeals.
(3.)The next and principal contention raised by the learned advocate
for the appellants is that as the decree which they have obtained
against the respondents is
one limited to the assets of the deceased Hari Krishnamma, the parties do not
fill the same character in all of them and that the respondents are not therefore
entitled to claim a set-off.
Before we examine the decisions cited, we may refer to the relevant provisions
of the Civil Procedure Code. They are contained in Rules 18, 19 and 20 of Order
21. It is enough however to extract for the present purpose sub-rules (1) and (3)
of Rule 18 and R. 20.
" 18. (1) Where applications are made to a court for the execution of cross-decrees in separate
suits for the payment of two sums of money passed between the same parties and capable of
txecution at the same time by such Court, then-
(a) If the two sums are equal, satisfaction shall be entered upon both decrees ; and
(4) if the two sums are unequal, execution may be taken out only by the holder of the decree
for the larger sum and for so much only as remains after deducting the smaller sum and satisfaction
for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree
of the smaller sum
(a) * * * * *
(3) This rule shall not be deemed to apply unless-
(a) the decree-holder in one of the suits in which the decrees have been made is the
judgment-deblor in the other and each party fills the same character in both suits ; and
(b) the sums due under the decrees are definite
19. * * *.
20. The provisions contained in rules 18 and 19 shal apply to decrees
for sale in enforcement of a
mortgage or charge."
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