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2«.VIRASINGAM v. KATHIRAVELU.
R., Chavakachcheri, 9,163.
Transferee of decree—“ Equities ” enforceable by a judgment-debtor—Setting off amount of decree in one case against that of decree inanother—Decree for costs—Decree capable of execution—CivilProcedure Code, ss. 340 and 345.
The “ equities ” mentioned in section 340* of the Civil ProcedureCode need not necessarily be equities of the judgment-debtor in thesame cause. Hence, where the transferee of a decree in an actionapplied for execution, held that ihe judgment-debtor was entitledto set off against such decree the amount of a decree in his favour■ in another action against the decree-holder in the former.
A decree for costs not yet taxed cannot be said to be a decreecapable of execution in terms of explanation 1 of section 345 of the.Civil Procedure Code.
'J'HE facts of the case appear in the judgment.
28th May, 1897. Withers, J.—
The'facts of this case are briefly these. The original plaintiffon record received judgment against the first defendant for asum of Rs. 80 with costs. If the formal decree which shouldfollow the judgment and bears the same date is the one minutedat page 3, it is imperfect, for it does not state the amount of costswhich the first defendant was adjudged to pay to the plaintiff.
The 188th section of the Civil Procedure Code requires .theamount of costs to be entered in tbe decrees of a Court of Requests.But this by the way. The decree was assigned to a person whosename was allowed to be substituted for the original plaintiffon the record. When the substituted plaintiff applied to take outexecution for the decree in full, he was opposed by the judgment-debtor, who claimed to set off against the new judgment-holdertwo judgments for costs which he had recovered against the originaljudgment-creditor in two cases of tbe Court below, viz., 9,121 and9,346, and to reduce the amount liable in this case by the combinedamount of the costs in the two other cases.<
The Commissioner favoured the judgment-debtor’s contentionto this extent. He said‘those ^costs are an equity to which the
* Section 340 of the Civil Procedure Code : “ Every transferee of a decreeshall hold the same subject to the equities (if any) which the judgment-debtormight have enforced against the original decree-holder.”
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transferee’s decree is subject, and so he stayed the issue of thepetitioner’s writ for ten days to enable the judgment-debtorto have the costs taxed in the two cases referred to.
Now, I think the Commissioner’s order technically wrong, butI do not propose to disturb it, for it has not been shown to methat the delay imposed on the judgment-holder has prejudicedany substantial rights (see section 39 of Ordinance No. 1 of 1889).
This of course implies that 1 think his order right in principle.I am of that opinion, notwithstanding the argument of Mr.Sampayo, that the equity referred to in section 340 of the CivilProcedure Code must be an equity of the judgmenfcdebtor in thevery same cause.
That this is not so is dear from section 345. Cross decreesin the same Court are equities according to illustration 1 of thatsection. But then those decrees must be capable of execution atthe same time.
Now, until the costs have been ascertained and certified by thechief clerk, I do not see how the decree ordering costs can besaid to be capable of execution.
If section 188 before mentioned had been duly observed, thedecree in the two cases referred to would have beea capable ofexecution at the time the present decree-holder applied forexecution of his decree in this case.
Hence I call the order technically wrong, because on theCommissioner’s own showing the cross decrees were not ripe foiexecution at the time of the decree-holder’s application.
If the costs of the cross decrees were duly certified within thetime allowed by the Courts to the judgment-debtor, the Com-missioner’s order will stand. If they were not so certified thedecree-holder must be allowed to take out execution in full.
No costs of this appeal.
VIRASINGAM v. KATHIRAVELU