AMBALAL SANKALESHWAR OZA Vs. PUNJABHAI TRIKAMLAL PANDYA

JUDGEMENT

(1.) THIS is a revisional application against an order of the lower Court that the petitioner should refund the costs which he had recovered from the opponent in pursuance of an order made in certain claim proceedings under O. XXI, Rule 58, of the Civil Procedure Code. The facts are shortly these :-The petitioner had obtained a decree against one Jivanlal and in execution he attached certain lands belonging to the judgment-debtor. The opponent applied for raising the attachment. The application was dismissed with costs on the ground that the opponent was not in possession of the property. Thereafter the petitioner recovered the costs of those proceedings from the opponent. The opponent then filed a suit under O. XXI, Rule 63, for a declaration that the suit property was not liable to attachment and sale in execution of the petitioner's decree. The matter came to this Court in second appeal, and it was held that the opponent was entitled to a declaration. that the suit property was not liable to be sold in execution of the decree. Thereafter the opponent applied under Section 144 of the Civil Procedure Code for refund of the costs which the petitioner had recovered from him on the ground that the executing Court's order was set aside by the decree in the regular suit with the result that the petitioner would not be entitled to the costs awarded to him. The Court held that even though the application was not strictly maintainable under Section 144, it could be entertained under the inherent jurisdiction of the Court under Section 151, and that the applicant would be entitled to refund because as a result of the decree in the regular suit the order of costs in the claim proceedings became unjust and inequitable so that the opponent was not entitled to keep the costs which he had recovered. An appeal was preferred against that decision to the District Court. The learned Judge held that the appeal was not maintainable, and that in any case the order of costs became inequitable by the decree in the regular suit in favour of the opponent. The appeal was, therefore, summarily dismissed.

(2.) THE petitioner has now applied in revision against the original order of the 'executing Court directing refund. It is contended on his behalf that the Court had no power to direct a refund either under Section 144 or Section 151 of the Civil Procedure Code inasmuch as the decree in the regular suit, even if it had the effect of setting aside the order in the summary proceedings, would not affect the order of costs, whatever it was, made in the claim proceedings. THE point, therefore, is whether the order of costs made by the executing Court against the unsuccessful party in the claim proceedings should be regarded as having been set aside by the decree in the regular suit in favour of a party against whom the order was made. In order to appreciate this point it is necessary to see what is the nature of the order made in the main claim proceedings and the nature of the decree made in the regular suit thereafter.

(3.) IT cannot be said, in my opinion, that the order of costs made by the executing Court in the claim proceedings is automatically set aside if the party against whom it is made succeeds in the regular suit. In the claim proceedings it is the question of possession that has to be decided, while in the regular suit the unsuccessful claimant can ask for a declaration of his right to the property and also for other reliefs. IT is indeed possible that a claimant may have a bad case in the claim proceedings and still a good case in a regular suit on title. In the claim proceedings the order consists of two parts, allowing or rejecting the claim and awarding or refusing costs. The setting aside of the first part of the order in the regular suit does not automatically set aside the second part. IT would be open to the unsuccessful party to claim a declaration and consequential reliefs which may include the setting aside of the order of costs in the claim proceedings, but where no such relief is granted, the executing Court would have no power to change its order of costs, much less grant a refund where costs have been recovered. To hold that the order of costs is impliedly vacated if the suit succeeds would be tantamount to treating the suit as an appeal against the summary order. Such a suit, however, is not a direct appeal although it may have the effect of nullifying the order by allowing or disallowing the claim. The order is not reversed or set aside in the sense of its reversal by an appellate Court. In my opinion, therefore, the view taken by the Nagpur High Court is not in consonance with the provisions of Rules 58 to 63 of O. XXI. There would not necessarily be an anomaly if the order of costs in the claim proceedings stands in spite of the unsuccessful party succeeding in the suit. The order of costs is entirely in the discretion of the Court and the question before the executing Court is not necessarily the same as the question before the Court, in the regular suit. IT is conceivable that a party may not succeed on the question of possession in the claim proceedings and may still succeed in the regular suit for a declaration of his right to the property. IT cannot, therefore, be said that the order of costs in the claim proceedings must always be regarded either as unjustified or impliedly reversed simply because of the success of the party in the regular suit. The Madras view that the Court hearing the suit has no power to change the order of costs is also, in my opinion, not correct. IT would be open to the party to claim a relief with regard to that order passed against him in the claim proceedings, and the Court can, in a proper case, grant it because it would be a consequential relief. But even assuming that it has no such power, the executing Court has no power under its inherent jurisdiction or under Section 144, Civil Procedure Code, to make amends to a party simply because he gets a declaration of his right to the property. The order is, therefore, set aside, and the rule is made absolute with costs in this Court and in the trial Court.