Patna High Court
Ramu Sahu And Anr. vs Thakur Dayal Rai And Ors. on 23 April, 1917
Equivalent citations: 39IND. CAS.888, AIR 1917 PATNA 259
JUDGMENT Atkinson, J.
1. This miscellaneous appeal comes before us from a decision of the Deputy Commissioner of Hazaribagh dated the 19th March 1915, dismissing the appellants' application for leave to issue execution on the foot of two decrees one dated the 1st April 1909 and the other dated the 5th May 1914 for costs; and the facts are shortly stated as follows:
2. The respondents in this appeal were plaintiffs in a suit instituted for declaration of title. The learned Subordinate Judge who tried that suit dismissed it on a summary ground, on the 9th February 1906. From the decision of the Subordinate Judge there was an appeal to the High Court of Calcutta, and that Court by its order or decree, dated the 6th May 1908, reversed the decision of the Subordinate Judge and directed that the suit should be retried and that in any event the plaintiffs in that suit should be entitled to their costs of the first trial. The respondents have never been paid the costs awarded by that order. On the remand the Subordinate Judge dismissed the plaintiffs' suit awarding to the defendants by his order of the 1st April 1909 costs of that proceeding. As usual there was an appeal to the Calcutta High Court and that Court was pleased to dismiss the appeal by its order of the 5th May 1914 awarding to the defendants their costs of that appeal. Thus the appellant here is entitled to the costs awarded by the order of the 1st April 1909 and the order made on appeal dated the 5th May 1914. The respondents claim that they are entitled to their costs under the order of the 6th April 1908. The original defendants in the suit were Ramu Sahu and Chamu Sahu. Ramu Sahu is dead. Prior to his death he transferred or assigned his interest in these decrees to the present appellant. Chamu Sahu who was the other defendant became a lunatic after the litigation and he has been transferred from the category of appellant to the category of respondent and is represented in these proceedings by Mr. Banerji instructed by the Assistant Registrar as his guardian ad litem. The contention that is urged before us is that the appellant here is entitled to execute his decrees for costs irrespective altogether of any right that the respondents may have to set off their costs under the order of the 6th April 1909. The learned Deputy Commissioner, came to the conclusion that the respondents were entitled to set-off the costs of the order of the 6th April 1909 as against the costs awarded by the two subsequent orders of the 6th April 1909 and the 5th April 1914. But the Subordinate Judge did not give the appellant here permission to issue execution in respect of the balance. He dismissed the entire application reserving liberty to the appellant to institute a fresh application for execution for the smaller sum when ascertained.
3. I think that the Subordinate Judge was not justified in dismissing the application in toto. I am clearly of opinion that the respondent here is entitled to set off the costs awarded by the order of the 6th April 1908 as against the two subsequent orders awarding costs to the defendants and in so deciding we rely upon the case reported as Nubo Lall Khan v. Maharanee of Burdwan 9 W.R. 590. For the reasons stated in the judgment of the learned Judges who decided that case, I think although there may be several orders awarding costs they were made in the same suit and in the same proceeding and must be deemed to be incorporated with and to form part of the final decree even though the prior orders awarding costs are of an interlocutory character. It would be inequitable and unjust to say that a party was not entitled to set off the costs awarded by one order in the same suit as against the costs awarded to another party by two subsequent orders in that suit. This case is not covered by Order XXI, Rules 18 and 19. It is stated that attempts have been made by the respondents to execute their decree for costs under the order of the 6th April 1908 on four separate occasions. This does not appear from the record; but it will be for the Deputy Commissioner if he thinks necessary to enquire into that matter. I do not think that the question of limitation will materially arise in this case, because according to the view we take whether the order be barred by limitation or not is immaterial inasmuch as the order of the 6th April 1908 was made in the same proceedings and must be deemed to be part of the final decree of the 5th April 1914. For these reasons I would remand the case to the Deputy Commissioner with a direction to him to set off the costs awarded to the respondents and to allow the appellant here to issue execution in respect of whatever balance may be found due to him. Inasmuch as the appellant has not succeeded in his application in this Court the parties shall pay their own costs.
Chamier, C.J.
4. I agree with the order proposed.