Bapna Actg. , C. J. - (1.) THIS is a second appeal by the plaintiff in a suit for recovery of money.
(2.) THE appellant sued the respondent for recovery of Rs. 505/5/- on the allegations that on 1. 6. 46 the defendant respondent borrowed Rs. 507/- on interest at the rate of 9 per cent per annum and thereafter paid Rs. 127/11/- leaving a balance of Rs. 505/5/- inclusive of principal and interest. It was alleged that the defendant had not paid the amount in spite of demand. THE suit was filed on the 17th March, 1947. The defendant pleaded that he had borrowed the sum, but it had been agreed that the plaintiff would give credit for the tuition fees of his son Nandkishore who had been taught by the defendant for a number of years from 1936 onwards. The plaintiff denied that the defendant had taught his son Nandkishore. But the trial court held on evidence that the defendant had taught the son of the plaintiff for seven years, and gave credit to the defendant for a sum of Rs. 420/- at the rate of Rs. 5/- per mensem. A decree for Rs. 85/5/- was passed in favour of the plaintiff. On appeal the same judgment was upheld. In this second appeal, it was argued that the plea of the defendant amounted to a plea of set-off, and as it was not for an ascertained sum of money, it could not be taken up under the provisions of O. 8, R. 6 of the Code. If it be deemed to be an equitable set-off, it did not arise out of the same transaction, and the claim was also barred by time. There is no doubt that the plea of the defendant is not covered by the provisions of O. 8, R. 6 of the C. P. C. But it has been held on good authority that if there is an agreement to give set-off the plea is enter-tainable, although not permissible under the statute. In para 684 of Volume XXIX of Halsbury's Laws of England, it is mentioned that a set-off may be created by an agreement, and on this ground a claim may be set-off which could not be pleaded under the statutory law. These observations have been cited with approval in Raja Sri Shiva Prasad Singh vs. Lalit Kishore Mitra (1) (A. I. R. 1943 Patna 152. ). The two courts have found that at the time of the execution of the pronote on 1. 6. 46 the plaintiff had agreed to give credit to the defendant's fees for teaching the plaintiff's son by the defendant. There is also evidence which has been believed by the two courts that the defendant did teach the plaintiff's son for a period of seven years. In the circumstances of this case the set off is allowable, although the claim may be barred by time on the date of institution of the suit. The two courts have come to a right conclusion and this appeal fails and is dismissed with costs. .;