Authored By : James Quain Pigot, Beverley

James Quain Pigot and Beverley, JJ.

1. The question raised is shortly this: Whether or not thedecree obtained by the respondents against the assignor in a suit which waspending at the date of the assignment, and which had ripened into a decreebefore the assigned decree was fully executed, can be set-off against theunexecuted portion of the assigned decree. The question for decision dependsupon the construction of three sections of the Civil Procedure Code; Sections246, 243 and 233. By Section 246 a set-off of one decree as against another isallowed. By explanation 2 of that section, it is allowed "where eitherparty is an assignee of one of the decrees, and as well in respect ofjudgment-debts due by the original assignor as in respect of judgment-debts dueby the assignee himself." It was for some time a subject of controversy inthis Court, whether in the case of decrees, both of which were in existence butnot yet set-off one against the other, upon the assignment of one of them, theright to set-off still subsisted as against the assignee; and after somecontroversy that question was finally decided in favour of the right toset-off. The case now before us opens a further question, inasmuch as at thedate of the assignment of the decree now held by the appellant, the decree heldby the respondents had not been made, although their suit had been filed.Section 243 provides that, "if a suit be pending in any Court against theholder of a decree of such Court, on the part of the person against whom thedecree was passed, the Court may (if it think fit) stay execution of thedecree, either absolutely or on such terms as it thinks fit, until the pendingsuit has been decided. In Section 233, it is enacted that "everytransferee of a decree shall hold the same subject to the equities (if any)which the judgment-debtor might have enforced against the originaldecree-holder." When the appellant took an assignment of this decree, shemust have known perfectly well (for it is admitted that she had full notice) ofthe existence of the suit against herself and her assignor, her co-sharer inthe putni.

2. A right to set-off the amount of one decree againstanother was repeatedly referred to, as an equity affecting the latter decree,in the decisions of this Court prior to the Code of 1877, which for the firsttime enacted Section 233, In whatever mode that equitable right could be madeto operate as against the holder of the decree, we think it must be allowed tooperate against his assignee with notice of the existence of the pending suit.It is clear that, apart from the assignment, the right of set-off as to theunexecuted part of the first decree would exist in the present case underSection 246 against the assignor; and for the reason just stated it mustequally exist against the assignee.

3. We therefore dismiss both appeals with costs. We thinkthat we ought not to be illiberal in assessing the costs in this case, which isan exceedingly oppressive attempt on the part of the appellant; and for thatreason, and the importance of the matter, we allow five gold mohurs as thehearing fee in each appeal.

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Kristo Ramani Dasseevs. Kedar Nath Chakravarti and Ors.(16.01.1889 - CALHC)