Judgement

Appeal (No. 82 of 1935) from a decree of the High Court (February 6, 1933) reversing a decree of the Subordinate Judge of Godda (April 11, 1931).

Certain persons, who may be compendiously referred to as the Barhams, obtained a money decree for Rs.81,398 in the High Court at Patna on January 15, 1924, against the 3rd, 12th and 13th respondents. The appellants purchased the decree on November 12, 1925, and, after getting their names substituted on the Record, sought to execute the decree on February 17, 1926, against the judgment-debtors above mentioned in the Court of the Subordinate Judge of Godda.

The respondents 1 to 16 were persons or represented persons who had on December 18, 1925, obtained a final mortgage decree in the Court of the Additional Subordinate Judge of Bhagalpur against the Barhams (the mortgagors) and certain other persons (who were represented by the respondents 17 to 36). The latter had been joined as having an interest in the mortgage security. The decree directed the sale of the mortgaged property in order that the respondents 1 to 16 should be paid a sum of Rs.86,612.

On September 19, 1928, the respondents 1 to 16 filed an application in the execution proceedings of February 17, 1926, above mentioned, claiming in effect under the provisions of s. 47 and Order xxi., r. 18, of the Code of Civil Procedure, that the two decrees should be treated as cross-decrees, that the decree purchased by the appellants should be treated as satisfied, and that the decree of the respondents 1 to 16 should be executed to the extent of the difference between the amounts of the two decrees.

The facts appear from the judgment of the Judicial Committee.

Rules 18, 19 and 20 of Order xxi. of the Code of Civil Procedure are as follows —

" 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 execution at the same time by such Court, then—

(a) if the two sums are equal, satisfaction shall be entered upon both decrees ; and

(b) 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 for the smaller sum.

(2.) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.

(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-debtor in the other and each party fills the same character in both suits ; and (b) the sums due under the decrees are definite.

(4.) The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons."

Illustrations.

(b) A and B, co-plaintiffs, obtain a decree for Rs.1000 against C, and C obtains a decree for Rs.1000 against B. C cannot treat his decree as a cross-decree under this rule.

(a) if the two sums are equal, satisfaction for both shall be entered upon the decree ; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree."

" 19. Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then—

" 20. The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge."

The Subordinate Judge held that the two decrees could not be treated as