UTTAM KUNWAR Vs. KRISHNA PAL SINGH

JUDGEMENT

(1.) This case has been referred to the Full Bench on account of the different views expressed in Division Bench cases reported in Het Ram v. Raja Dutt Prasad Singh AIR 1926 All 722 (1) and in Kashit Husain v. Sashidhar Singh, AIR 1930 Oudh 328.

(2.) Krishnapal Singh respondent sought execution of the decree in favour of Smt. Man Kunwar, his grandmother, for maintenance which had been declared a charge on the family zamindari property of Daljit Singh, husband of Srimati Uttam Kunwar appellant. Two objections under Section 47 C. P.C. were filed by the judgment-debtor. They were dismissed with costs by the Civil Judge and appeals against those orders were dismissed with costs by the High Court. Krishnapal Singh thereafter applied for the recovery of the costs awarded to him in these proceedings on the objections filed under Section 47 C.P.C, by executing the decree for costs by attachment and sale of the personal property of Srimati Uttam Kunwar. She objected to the execution proceedings on the ground that those costs could be realised in the first instance only from the property charged with the maintenance allowance and not from her personal property in view of Rule 10, Order 34, C. P. C. The objection was dismissed by the learned Civil Judge who relied on the case of AIR 1926 All 722(1).

(3.) Rule 10 prior to its amendment by Sec. 6 of the Transfer of Property (Amendment) Supplementary Act XXI of 1929 was; ''In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure or sale or redemption, the Court shall, unless the conduct of the mortgagee has been such as to disentitle him to costs, add to the mortgage money such costs of suit as have been properly incurred by him since the decree for foreclosure or sale or redemption up to the time of actual payment." This rule was considered in Het Ram v. Dat Prasad AIR 1926 All 68, AIR 1926 All 722(1) and AIR 1930 Oudh 328.