- (1.) It appears to me that in this case the order of the Subordinate Judge, allowing execution to issue at the suit of the Bhuttacharjees for that portion of the decree which they claim to be due to them ought to be reversed. The Sandyals obtained a decree against the Bhuttacharjees, and in execution of that decree certain property of the Bhuttacharjees was sold and purchased by the Sandyals. The Bhuttacharjees subsequently instituted a suit against the Sandyals to set aside the sale of the Bhuttacharjees property in execution, and the Bhuttacharjees in that suit obtained a decree against the Sandyals for the restoration of the property and the mesne profits which they had obtained while they were in possession. It is unnecessary to refer to that portion of the proceedings which related to the estate called Arungai-jai, which had been sold for arrears of revenue, and in respect of which it has been held that the Bhuttacharjees are entitled to recover surplus proceeds.
(2.) The Sandyals afterwards proceeded to obtain execution of their original decree in the Judge's Court. The Bhuttacharjees came in and objected to the Sandyals executing for the whole amount of the decree, and asked that their decree against the Sandyals might be set off against the other decree; the amount of the Bhuttacharjees' decree was not then ascertained, as the amount of wasilat had not been assessed. After considerable litigation, an order of the High Court was made on the 14th September 1865, with the consent of both parties, fixing the mode in which the set off was to be made.
(3.) It appears to me clear, that after that order made with the consent of both parties the Sandyals would never have been allowed to execute their decree for the full amount, without deducting the amount of the Bhuttacharjees' decree. The Sandyals' decree was a decree of the Provincial Court, and substantially became a decree of this Court. How if the effect of that order made by consent was to prevent the Sandyals executing their decree without giving credit for the Bhuttacharjees' decree, it follows, that it would be most inequitable to allow the Bhuttacharjees to execute their decree against the Sandyals.;