(1.) This appeal arises out of execution proceedings in which a warrant under Order 21 Rule 38 C. P. Code was issued for the arrest and detention in civil prison of the judgment-debtor No. 2 Navnitlal Chimanlal the appellant before me. A few facts may be stated in order to understand the controversy in this litigation:- One Chimanlal Motilal filed an appeal in the High Court of Bombay and died during the pendency of the appeal. As he died his heirs namely Sitabai and Navnitlal Chimanlal were made parties to the appeal and their application for stay of the decree appealed against during the pendency of the appeal was dismissed with costs. The execution was sought of the decree which related to costs of this application only. In that execution proceeding the lower Court issued a warrant of arrest against Navnitlal Chimanlal. This order is now challenged in appeal.
(2.) It is contended that Navnitlal is only the legal representative of the deceased appellant and that therefore the decree of costs must be executed against the estate of the deceased Chimanlal Motilal. In support of this contention reliance is placed on sec. 35 C. P. Code and it is contended that the order of costs is passed under this section. Reliance is also placed on Vinayakrao Pandurangrao v. Sharanappa Ramanna 45 Bom.L.R. 1029 and Satyanarayana v. Ramalakshmamma A.I.R. 1959 Andhra Pradesh 662
(3.) Part I of the Civil Procedure Code deals with suit in general. This Part contains sections 9 to 35A. Part IV deals with suits in particular cases. Part V deals with special proceedings. Part VII deals with appeals including appeals from original decrees appeals from appellate decrees and orders. Section 35 deals with costs of and incident to all suits. That section reads as follows :-