HORIL MAHTON Vs. REWA MAHTON

JUDGEMENT

(1.) IN this appeal by the plaintiff-decree-holders the only question which arises for consideration is the meaning of the words used by this Court in a remand order to the effect that "costs will abide the result". The appallants instituted a suit for partition. It was found by the trial Court that they should be non-suited on the ground that they had not included all the family properties fn the suit, and, in the result, the suit was dismissed. On appeal to this Court, learned counsel appearing for the plaintiff-appellants offered to amend the plaint by including all the properties which had been left out and thereby avoided the dismissal of the appeal. This Court allowed him to amend the plaint and remanded the case to the trial Court for a fresh decision when ail the properties were included, permitting the defendants to file additional written statement, if they so desired. After remand, the trial Court decreed the suit tor partition, hut, in the circumstances of the case, it passed an order that the parties shall bear their own costs. The appellants, thereafter, levied execution in Execution Case No. 14 of 1961 for realising a sum of Rs. 755.22 np. which was the amount of costs incurred by them in prosecuting their appeal in this Court, being First Appeal no. 335 of 1957. An objection was filed under Section 47 of the Code of Civil Procedure by the present respondents that the execution was not maintainable in view of the order passed by the trial Court on remand that the parties shall bear their own costs. The executing court dismissed the objection, whereupon a miscellaneous appeal was preferred to the lower Appellate Court by the respondents. The learned Additional District Judge, in a very able judgment, relying on the decision in Godavarthi Periah v. G. Lakshmidevamma, ILR 39 Mad 4/6 : (AIR 1915 Mad 621 (1), has come to the conclusion that the order of this Court saying that the "costs will abide the result" did not in any mariner tetter the discretion of the trial Court in either awarding or not awarding costs to the parties. I have no doubt that the learned Additional District judge has arrived at a correct conclusion as to the meaning or the words "costs will abide the result". It my be apposite in this connection to quote from, a judgment of Lord Esher, M.R., in Brotherton v. Metropolitan District Rly. Joint Committee, (1894) 1 Q B 666, where in a very lucid passage, if I may say so with respect, the learned Judge has given the true meaning and connotation of these words. The passage runs as follows:--

(2.) THERE is, thus, no merit in this appeal which must be dismissed. In the circumstances of this case, however, there will be no order as to costs of this appeal.