The principle of equitable set off can be applied to allow the adjustment of dues payable for unauthorised occupation against the decretal amount, even if it does not strictly fall within the terms of Order 21 Rule 18 of the Code of Civil Procedure.

JAYANT NATH, J.

1. By the present petition the petitioner seeks to impugn the order passed by the Trial Court dated 15.4.2015 by which the petition was dismissed holding that whatever amount is payable by the decreeholder/respondent to the petitioner on account of unauthorised occupation of the official accommodation by the Decree holder would be a separate cause of action for the petitioner and cannot be adjusted against the decretal amount to the satisfaction of the decree in favour of respondent No.1.

2. This Court vide order dated 27.8.2015 had passed a direction pointing out that the respondent No.1 had been in unauthorised occupation of the official accommodation provided to him and as a consequence of which the Estate Officer has imposed certain damages/user charges exceeding over Rs.5 lacs. This order was not challenged and attained finality. This Court had directed the petitioner to prepare a statement of accounts after deduction of these charges for unauthorised occupation and to file the statement.

3. Learned counsel for the petitioner states that this statement has been filed. Respondent No.1 disputes the statement. Parties have attempted settlement before the Mediation Centre but no settlement could be arrived at. Hence, it has to be seen whether the petitioner can carry out the necessary adjustment it seeks.

4. Relevant portion of Order XXI Rule 18(1) reads as follows:-

“XXI 18. Execution in case of cross decrees.-(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.”

5. Hence, where there are cross decrees in favour of different parties and the two sums are unequal the decree holder for the larger sum would be liable to pay only after deduction of the smaller sum.

6. In the present case the recovery which is sought to be effected by the petitioners against the respondent does not pertain to a decree in a civil Suit but pertains to assessment of damages made by the Estate Officer in exercise of powers under The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for unauthorised occupation of premises allotted to the respondent as official accommodation while he was in service. The issue that would arise is as to whether these damages fixed by the Estate Officer could be recovered as envisaged for a court’s decree under Order 21 Rule 18 CPC. A Full Bench of the Andhra Pradesh High Court in Bhoganadham Seshaiah vs. Buddhi Veerabhadrayya & Others, 1971 SCC On Line AP 104; AIR 1972 AP 134 noted that on general principals in exercise of its inherent power an Execution Court can entertain and give effect to a claim of set off even in case it do not fall strictly under the provisions of Order 21 Rule 18 or 19 CPC. The Court held as follows:-

“16. Now, order 21 Rule 18, C.P.C. provides that cross decrees for the payment of money shall be set off against each other. However, in order to attract the said Rule, the following condition must be satisfied; (a) the decree must be for the payment of definite sum of money; (b) they must have been passed in separate suites (c) the decree-holder is one must be the judgment-debter (d) the parties must fill the same character in both the suits (e) both decrees must be capable of execution and must be so at the same time and by the same court; and (f) application should have been made to the court for execution of both decrees.

17…..

19. The question then is whether apart from the provisions of Rule 18, t