JUDGMENT

Roxburgh, J. - The appellant, Rajani Kanta Dhara, has obtained a mortgage decree for sale for a sum which now amounts to about Rs. 5000 against defendants 2 and 3 in Title Suit No. 15 of 1933 in the Court of the First Subordinate Judge, Howrah; while defendants 2 and 3 in turn have been awarded by the same decree costs amounting to about Rs. 1400 against the plaintiff. The appellant has no personal remedy against the defendants in respect of the amount decreed in his favour. Defendants 2 and 3 have sought to execute their decree for costs in Title Execution case No. 27 of 1941 of the same Court, and the appellant has claimed a set-off of the amount due by him for costs against the amount due to him on the mortgage decree; he relies on the provisions of Rules 19 and 20 of Order 21, Civil P. C. The appellant's claim for set-off has been refused by the trial Court, hence this appeal.

2. When asked why his clients object to the set-off, Mr. Das on behalf of the respondents, states that the property will probably not fetch more than Rs. 1700 on a sale. If this is correct then if set-off is allowed defendants 2 and 3 will in fact get nothing out of their decree for costs. If, however, the property is worth on a sale Rs. 5000 the amount of the appellant's decree, or more, then it is financially immaterial to the parties whether set-off is allowed or not. If the property is worth less than Rs. 5000 the appellant's net receipts will be diminished to the extent of the shortage, if no set-off is allowed, while those of the respondents will be diminished by a similar amount if set-off is allowed, vanishing to nothing if the property fetches on sale Rupees 3600 or less.

3. On behalf of the appellant reliance is placed on a series of cases, mostly of the Madras Court in which it has been held that a set-off may be made even in cases where there is no personal liability to pay the decretal amount, and in some of which stress is laid on the terms of Order 21, Rule 20 of the Code, which make the provisions of Rules 18 and 19 of the same Order applicable to "decrees for sale in enforcement of a mortgage or charge." In cases in which set-off has been held to be not permissible either no reference is made to the terms of Rule 20 at all, or else it has been held that Rule 20 does not literally apply the provisions of Rules. 18 and 19 to all mortgage decrees for sale, but only to such as can be brought within the terms of those rules, and it is held that decrees where there is no personal liability to pay are either (1) not decrees "for the payment of" sums of money (Rule. 18) or (2) not decrees under which the decree-holder who can bring about the sale is, "entitled to recover" a sum of money from the defendant, (Rule 19) or (3) that the respective parties do not "fill the same character" (Rule 18(3) (a)). In Hazari Bam v. Bansidhar ('37) 24 A. I. R. 1937 P. C. 39 which was an appeal before the Judicial Committee from the judgment in Garib Mian Thikadar Vs. Mohammad Habibul Rahman, AIR 1933 Patna 210 , Sir George Rankin stated

it is true that under Rules 18 to 20 the set-off of decrees is not a discretionary matter depending upon equitable considerations such as may emerge from the circumstance that both decrees arise out of the same transaction. Whatever they may arise from, circuity of proceedings thereunder can be avoided and should be avoided--this is the principle of the rules.

The main question for decision was whether a mortgage decree for sale could be set-off against the decree for costs, that is to say, one under Rule 18 read with Rule 20. The judgment showed that the right of respondents 1-16 in the mortgage suit before the Judicial Committee to a personal judgment subsisted. The principal argument before the Court was that Rule 20 only applies where both decrees are mortgage decrees. This was not accepted. The question whether there could be a set-off in cases where there was no personal liability under the mortgage decree was no