ALLURI BANGAR RAJU Vs. ALLURI RAJA KALIDINDI SURAIAHMMA BAHADUR

JUDGEMENT

(1.) This appeal is brought by some of the judgment-debtors (defendants 1 to 6) in O.S. No. 8 of 1939 from theorder 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.

(2.) 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, Atchayya died leaving behind her three daughters, the 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 along with defendant 7 to 23 had against the above-mentioned Atchayya in the following circumstances: Atchayya and another Venkatanarasimharaju filed O.S. No. 12 of 1940 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 plaintiff's 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 respondents (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 1939 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 E.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, Civil Procedure Code. 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.

(3.) 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, Civil Procedure Code and it may be usefully set out :