DAMBARUDHAR BHUNYA Vs. MURALIDHAR BHUNYA

JUDGEMENT

(1.) This revision is directed against the order dt. 27-11-80 passed by the learned Subordinate Judge, Kendrapara refusing the prayer of the petitioner to the effect that he is not liable to pay the costs of the suit decreed against him.

(2.) The undisputed facts may be stated in brief. Opposite party 1 was plaintiff, the petitioner was defendant 1 and opposite parties 2,3, and 4 were the other defendants in Title Suit No.90 of 1968 of the Court of the Subordinate Judge, Kendrapara. It was a suit for partition. The suit was decreed in favour of opposite party 1 with costs of Rs. 685.89 paise to be paid by the petitioner and opposite parties 2, 3 and 4 to opposite party 1. The petitioner preferred First Appeal No. 177 of 1971 in this Court. The appeal was allowed in part and the parties were directed to bear their respective costs. Opposite party 1 levied execution in execution Case No. 85 of 1971 against the petitioner and opposite parties 2 to 4 for recovery of costs of the suit amounting to Rs. 685.89 paise. During the pendency of the execution proceeding, the petitioner on 6-11-1980 raised an objection to the effect that he was not liable for the costs under execution because, in First Appeal 177 of 1971 the parties were directed to bear their respective costs. On hearing both parties in the matter, the learned Subordinate Judge held that in the First Appeal, the parties thereto were directed to bear their respective costs, but as there was no direction that the parties should bear their costs throughout, the petitioner and opposite parties 2 to 4 were bound to pay the costs of the suit decreed against them. Accordingly, he overruled the petitioner's objection.

(3.) Learned counsel appearing for the petitioner contended that according to the doctrine of merger, the judgment and decree passed by the trial Court merged with those of the Court of appeal. As the Court of appeal directed that the parties should bear their respective costs, it necessarily meant that parties should bear their respective costs incurred both in the suit as well as in the appeal. Therefore, the petitioner is not liable to pay the costs of the suit. Learned counsel appearing for opposite party 1, on the other hand, urged that the doctrine of merger has no application to a case of payment of costs. Since in the First Appeal there was no direction that the parties should bear their respective costs throughout, opposite party 1 is entitled to realise the costs of the suit.