JUDGMENT

Agarwal, J - These are two connected second execution of decree appeals, No. 33 of 1939, Shaikh Mohammad Abdullah v. Kunj Behari Lal and No. 35, Haji Shaikh Faqir Baksh v. Kunj Behari Lal. The Courts below have disposed of both the cases by one judgment and so I als"o propose to do the same, the point in dispute in both the appeals being the same. The facts giving rise to these appeals are as follows: Abdullah, appellant in appeal No. 33 brought a suit for redemption against thirty-three persons. The Munsif dismissed the suit on the ground of limitation. Abdullah appealed and the appeal was allowed with costs in both the Courts. One of the defendants Kundan Lal appealed to this Court and his appeal was dismissed with costs. The same in the case of Faqir Baksh. The claim of Abdullah was decreed on payment of Rs. 270-5-4 and he was awarded Rs. 151 as costs of all the three Courts. Faqir Baksh's suit was decreed on payment of Rs. 436 and he was awarded Rs. 276-7-6 costs of all the three Courts. Both the plaintiffs deposited the redemption money and then applied for the execution of their costs against Kundan Lal. Kundan Lal did not object to being made liable for the costs awarded against him in this Court but disputed his liability as to the costs of the first two Courts. He filed an objection that the costs were payable not only by him but by other defendants also and the plaintiffs while depositing the redemption prices ought to have deducted these costs and the decree was not executable against him alone.

2. The learned Munsif upheld this objection of Kundan Lal in both the cases and directed the decree-holders in each case to withdraw out of the redemption money, the amount of his decree for costs. Both the decree-holders appealed to the District Judge and he dismissed their appeals. They preferred these appeals in this Court against Kundan Lal but he died during their pendency and is now represented by his son Kunj Behari Lal. The learned Munsif held that under the provisions of Order 21, Rule 19, Civil P.C., the plaintiffs ought to have deducted their costs from the redemption money. He also held that even if Order 21, Rule 19 was not applicable, the decree-holders were not entitled to execute the decree against Kundan Lal on principles of justice, equity and good conscience, in respect of the decree for costs incurred by the plaintiffs in the first two Courts. The learned District Judge held that it was not necessary to decide whether Order 21, Rule 19 was applicable or not but upheld the judgment of the learned Munsif on principles of justice, equity and good conscience. The first point which I propose to decide is whether Order 21, Rule 19 was applicable or not. That rule runs as follows:

Where an 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--

(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.

3. In the present case, the amount payable by the appellants was larger than the costs awarded to them. Reference has been made to several cases by the learned Counsel for the respondent to show that the appellants were entitled to deduct the amount of costs from the redemption money but there is no authority to show that they were bound to do so. Order 21, Rule 19 does not debar the judgment-debtor liable to pay a larger sum than that to which he is entitled from paying the larger sum and then seeking execution of his smaller amount. A decree-holder for the smaller amount may be barred from executing his decree. When the applications for execution were made in these cases, the decree in favour of the defendants was no longer subsisting and so ther