Judgment :- 1. This second appeal is by the 1st defendant judgment debtor, whose objection to delivery on the strength of The Holdings (Stay of Execution Proceedings) Act VIII of 1950 has been concurrently rejected by the courts below. 2. The question depends upon whether the appellant has "failed to pay the rent of the holding which has accrued due after the commencement of the Act", within the meaning of Cl. (a) of the proviso to S.4 of the Act. The appellant set-off the amount granted to him by way of costs as against the plaintiff-decree-holder under the decree in the case and paid into court what he alleged was the balance of the rents. On this, the executing court held that he was still in arrears, apparently on the footing that the set off claimed was not allowable and rejected his objection to delivery. This order was confirmed by the learned District Judge in appeal, though the exact grounds on which he disposed of the appeal are not very clear from the judgment. Mr. George Vadakkeyil, learned counsel for the appellant, submits that there was no reason not to allow the adjustment of costs by way of set-off as claimed by the appellant on the principle of 0.21, R.19 C. P. C. and even assuming otherwise, the executing court should have allowed the 1st defendant time to deposit the deficiency. 3. Now S.4 of the Act has invested the executing court with a discretion, in the matter of ordering delivery of possession in execution of decrees for recovery of possession of holdings, depending on its satisfaction that the judgment-debtor has failed to pay the rent of the holding which has accrued due after the commencement of the Act. So if moneys are due to the judgment-debtor under the very decree which allows the recovery and there is no conceivable prohibition against the execution of the decree for recovery of such moneys at the instance of the judgment-debtor, cannot such moneys be offered by him in satisfaction pro tanto? In our judgment there can be no objection to such a course. In our judgment there can be no objection to such a course. For it will only be an idle and meaningless formality to ask the judgment-debtor on the one side to deposit the rent due from him for payment to the decree-holder and on the other to allow him to execute his decree for costs possibly by way of attachment of the amount deposited. The court which has to be satisfied as to the payment of the rents has itself to grant the execution in favour of the judgment-debtor. If so there can be no possible difficulty. The matter would of course be different if the concerned moneys due to the judgment-debtor was for the value of improvements in the holding, the delivery of which, is being resisted by him. For, such moneys could not be available for payment to him so long as he seeks to retain the holding. 4. In Ishri v. Gopal Saran, I. L. R.6 All. 351, there was a decree in a pre-emption suit which provided that the plaintiff was to obtain possession on payment of the purchase money and was also to get a sum by way of cost. The plaintiff deposited the purchase money with the exception of a sum less than the costs awarded to him. It was held he could do so, on the basis of the principle underlying S.221 and 227 of the Code of Civil Procedure corresponding to 0.20, R.6, and 0.21, R.19 of the present Code. Mahmood, J, who delivered the judgment of the court in that case held that there could be no inconvenience and delay in applying the principle, because the decree which declared the plaintiff's (pre-emptor's) right to obtain possession on payment of the purchase money declared him in the same breath to be entitled to recover costs from those against whom the decree was to be enforced. According to the learned judge to hold otherwise, was to give mere formality the significance of a substantive effect. In Hemendra Nath v. Tulshi Singh, A. I. R.1930 All 413, the plaintiff was granted a decree for possession on condition of his depositing in court certain sums. At the same time he was allowed costs and mesne profits. According to the learned judge to hold otherwise, was to give mere formality the significance of a substantive effect. In Hemendra Nath v. Tulshi Singh, A. I. R.1930 All 413, the plaintiff was granted a decree for possession on condition of his depositing in court certain sums. At the same time he was allowed costs and mesne profits. On the plaintiff seeking to set-off the costs and mesne profits and deposit the balance, the judgment-debtors objected that the suit should be taken to have been dismissed because the sum which the plaintiff was directed to deposit was not deposited within time. The court overruled the objection applying the provisions of 0.21, R.19 by way of analogy. The same principle was applied in Chinnamal v. Chidambara. A.I.R. 1936 Mad. 626 and more recently in Narasamma v. Venkiteswara Rao, A.I.R.1943 Mad, 667 and Cannati v. Nilkanth A.I.R. 1954 Bom. 335. In the first of these cases, Chinnammal v. Chidambara, the decree provided that on the plaintiff's depositing in court a certain sum within a time fixed, the defendant was to execute the deed of conveyance in plaintiff's favour and further that the defendant was to pay the plaintiff a certain amount by way of costs. Plaintiff deposited a sum of money after deducting the amount of costs payable to him under the decree and also other sums claimable by way of restitution and interest thereon. It was held that the claims were in the nature of cross demands arising out of the same transaction and the doctrine of equitable set-off allowed by courts of equity held good and hence the plaintiff had deposited the proper amount in court. It was true in all these cases that 0.21, R.19 which referred to two parties "entitled to recover sums of money from each other" was inapplicable. But in asking for the set-off, the various parties were not exceeding their rights under the general law. It seems to us therefore that both on authority and principle, there could be absolutely no objection to allow the 1st defendant-appellant to set-off the amount of costs due to him under the decree, against the rents that accrued due after the date of the Act and depositing the balance, for purpose of earning the concession under the Act. 5. It seems to us therefore that both on authority and principle, there could be absolutely no objection to allow the 1st defendant-appellant to set-off the amount of costs due to him under the decree, against the rents that accrued due after the date of the Act and depositing the balance, for purpose of earning the concession under the Act. 5. Learned counsel for the respondent urged that the 1st defendant had taken considerable time in making the deposit even of the balance and that again, after issue of notice to him to show cause why delivery should not be granted and the orders of the court below should be sustained at least on that ground. The question, however, is one of the satisfaction of the court that the 1st defendant has failed to pay the rent. Even if it be found that the tenant has not paid the rent that accrued due after the commencement of the Act on the due date, the court has still a discretion to refuse to order delivery of possession of the holding. As held in Krishnan v. Govinda Prabhu, 1952 K.L.T.224, F.B.; "This discretion will certainly have to be exercised in a judicial manner. Ordinarily the court will not order delivery of possession of the holding if the tenant pays the rent before delivery is ordered. But in exceptional cases the court may order delivery even if the rent is tendered or paid before delivery is ordered. The question for consideration in such cases will be whether there has been wilful and unjustifiable default on the part of the tenant in paying the rent." The judgment then went on to indicate as a rule of practice that only in cases in which a demand for rent had been made by the landlord or notice had been given to the tenant by the court to show why delivery of possession of the holding should not be ordered, and the tenant without any fawful excuse failed to pay the rent that it can be held that the tenant had failed to pay the rent of the holding as contemplated by the proviso but finally left it as a question primarily one of discretion to be exercised by the courts in a judicial manner. 6. 6. Neither the executing court nor the District Court on appeal, seems to have exercised, their discretion in the above sense and particularly with reference to the right of the judgment-debtor to set-off, which we have discussed earlier. There is also the question whether the judgment-debtor has deposited the right balance after set-off of the amount due to him by way of costs. That question had not been ascertained so far. We therefore set aside the orders of the courts below and remit the case to the executing court for disposal afresh, in due course of law and in the light of the above observations. In the circumstances of the case, both parties will bear their respective costs in this Court and in the lower appellate court. Allowed.