MAREMANDA SESHAMMA Vs. JOOLURI NARASIMHA RAO

JUDGEMENT

(1.) This is a petition to revise the order of the learned District Judge, Guntur In I.A. No. 554 of 1959 in A.S. No. 247 of 1953 on his file.

(2.) The relevant facts are briefly as follows:-The appellant in A. S. No. 247 of 1953 filed I.A. No. 554 of 1959 under Order 26, Rules 4 and 6 C.P.C., praying to issue a commission for examination of a Handwriting Expert at Delhi. The learned District Judge passed an order directing the petitioner to pay the expenses of the other party. The petitioner failed to pay expenses accordingly. In consequence, the learned District Judge passed the order rejecting the petition. Hence this revision has been filed.

(3.) The learned advocate for the petitioner relies on the decision of a Division Bench of the Madras High Court in Tata Iron and Steel Co. Ltd. v. Ibrahim Rowther, (1955) 2 Mad LJ 232 : ( (S) AIR 1955 Mad 654). Therein, the question as to whether the Court can order a party under Order 26, Rule 15 C.P.C., to pay expenses of the opposite party came up for decision by a Division Bench by reason of certain conflicting decisions which already existed. The Bench considered the conflicting decisions, reported and unreported and finally decided as follows: "We are, therefore, clearly of the opinion (a) that the expression expenses of the commission in Order 26, Rule 15 C.P.C., does not include expenses of the opposite party and (b) thai the Court has no inherent power to travel outside Order 26, Rule 15, C.P.C. and impose conditions not warranted by that or any other specific statutory provisions in that regard. To pass an order in the terms as the Court below has done would really be tantamount to passing an interim decree for costs which cannot be sustained under any provision of the Code." That decision of the Bench was passed on 21-2-1955 that is, after the formation of the Andhra High Court. Consequently, that decision is not binding on this Court. But, it is very valuable in two ways: (1) Its persuasive value and (2) A Bench of the Madras High Court sat and decided as to which view out of the conflicting views expressed in the various earlier decisions was correct. The original conflicting decisions were passed before the Andhra High Court was formed. So, the decision of the Bench of the Madras High Court gives a valuable indicatnn as to which earlier decisions were chosen by them to be confirmed and continued in force out of the conflicting decisions. The learned Judges accepted the decision of Govinda Menon J. in Saboora Bivi Ammal v. Julaika Bivi Ammal, (1949) 2 Mad LJ 524 : (AIR 1950 Mad 144), and the unreported decision of Balakrishna Ayyar, J. in C.R.P. No. 303 of 1954 In preference to the decision of Mack J. in Abdur Rahiman v. Muhammad Kasam, (1948) 2 Mad U 652 : (AIR 1949 Mad 490). I prefer to follow the decision of Govinda Menon J. in (1949) 2 Mad LJ 524 : (AIR 1951 Mad 144), which was approved of by the Division Bench in (1955) 2 Mad LJ 282 : ( (S) AIR 1955 Mad 654)., in , preference to the decision of Mack, J. in (1943) 2 Mad LJ 652 : (AIR 1949 Mad 490), and hold that the Court below had no jurisdiction under Order XXVI Rule 15 C.P.C., to direct the petitioner to pay the expenses of the other party. In effect, I find that the order of the lower Court directing the petitioner to pay the expenses of the other party was not lawful or correct and that the rejection of I.A. No. 554 of 1959 for failure to pay such expenses was also not correct. I accordingly set aside the order of the lower Court, allow the revision petition and allow I. A. No. 554 of 1959 with costs of this Court.