The principle of equitable set-off and the interpretation of Order 21, Rule 19, Civil Procedure Code were central to the court's decision.

Venkatasubba Rao, J.

1. This case has had a long history. It was commenced in 1918 and what we hope is the final order, we are now pronouncing in 1936.

2. Before dealing with the appeal we must advert to a certain matter that has happened. The appellant filed an affidavit and persuaded the office to treat the respondent as a lunatic without notice to his counsel on the record. Some person was appointed as his guardian ad litem, whose name was entered in the cause-list in the place of the respondents counsel. The respondent was not a lunatic so found by inquisition and the procedure adopted, we need hardly point out, is extremely irregular. At the request of Mr. Vaidyanatha Aiyar, the respondents counsel, we directed that his name should appear in this days list and whether the respondent is a lunatic or not, he has now had the benefit of being represented by his counsel on the record. His guardian ad litem, we may observe, did neither appear in Court, nor was he represented.

3. The question argued in the appeal is whether the plaintiff can be deemed to have carried out the direction in the decree in question in regard to the deposit of money into Court. That decree was passed by the High Court on 17th January, 1928, and it provided that on the plaintiff depositing into Court Rs. 500 within the time mentioned there, the defendant was to execute, and get registered, a deed of conveyance in her (the plaintiffs) favour; the decree further provided that the defendant was to pay the plaintiff a certain amount by way of costs.

4. The plaintiff deposited into Court within the time limited Rs. 157-15-0, that is to say, Rs. 500 less (i) the costs awarded to her by the decree, (ii) a further sum representing certain other costs which she was entitled to recover by way of restitution under Section 144, Civil Procedure Code, and (iii) the interest on certain items of costs.

5. It is contended for the defendant-respondent that there was a duty cast by the decree upon the plaintiff, to deposit the full amount of Rs. 500 and that she, having committed default, was not entitled to the re-conveyance. Mr. Vaidyanatha Aiyar has strongly urged that Order 21, Rule 19, Civil Procedure Code, is inapplicable and that therefore the plaintiff was not entitled to deduct from the purchase money the costs awarded to her. The decree as worded gives the plaintiff the right to demand that the property shall be conveyed to her on her depositing the purchase money, but it does not confer upon the defendant a corresponding right, that is, he cannot on tendering the conveyance, claim the purchase-money from the plaintiff. It may therefore be argued, that as under the decree by its own force, the defendant is not entitled to recover a sum of money, Order 21, Rule 19, which refers to two parties "entitled to recover sums of money from each other", is inapplicable. Whether independent of the decree the defendant can on tendering a proper conveyance demand the purchase-money, is a question which it is unnecessary for the present purpose to decided. Assuming however that Order 21, Rule 19 is inapplicable, the question arises, did the plaintiff, in availing herself of the setoff and deducting the costs, exceed her right under the general law? There is a strong body of authority in favour of the view that the kind of right which the plaintiff claims, exists apart from the provisions of the Code. The point has been very fully considered by a Bench of the Allahabad High Court consisting of Straight, Order C.J., and Mahmood, J., in Ishri v. Gopal Saran I.L.R (1884) 6 All. 351, the decree there was made in a pre-emption suit and very closely resembles the decree in question. There also it was provided that the plaintiff was to obtain possession on payment of the purchase-money and that he was to get a sum by way of costs. The plaintiff deposited the purchase-money with the exception of a sum less than the amount of costs awarded to him and it was held that the principle