RAMSARAN DAS KASHYAP Vs. KAVIRAJ BASUDEVANAND

JUDGEMENT

(1.) This is an application under Section 151 of the Code of Civil Procedure for amendment of a decree passed by this Court in First Appeal No. 167 of 1947. The question substantially is one of construction of certain words in the decree which had reversed a decree of the lower court and directed that the plaintiff-appellant "is also entitled to his costs from them (defendants 1 and 3) of this Court as also of the Court below."

(2.) The circumstances giving rise to this application are as follows: First Appeal. No. 167 of 1947 arose out of a suit instituted by the petitioner on the 29th July 1945 for a declaration that a conveyance executed by defendant No. 1 (respondent No. 2) be adjudged to have been acquired for the benefit of the petitioner and defendant No. 3 (respondent No. 1) and that defendant No. 3 was a trustee of the petitioner in respect of the property in suit. There were other reliefs of a consequential nature but they are not relevant for the purposes of this application. The subject-matter of the suit was some immovable property and the plaintiff's suit was based on a registered contract dated 12th June 1953 for the sale of the said property to the plaintiff and defendant No. 3 for Rs. 62,000/-. The suit was actually valued at Rs. 62,000/- and an ad valorem court-fee of Rs. 2,325/- was paid thereon. The suit was dismissed with costs by the Additional Subordinate Judge of Hazaribagh on the 28th February 1947. In the decree which was prepared, plaintiff's costs were specified as Rs. 3,289/2/3. The costs of defendants Nos. 1, 3 and 4 were specified as Rs. 944/5/-, Rs. 1,016/10/9 and Rs. 926/9/6 respectively. Plaintiff's costs included inter alia Rs. 2,325/- which was the value of the court-fee paid and Rs. 910/- as pleader's fee on Rs. 62,000/-. The costs of the three sets of defendants also included the item of Rs. 910/- as pleader's fee in each case on the valuation of the suit. Against this decree the plaintiff preferred an appeal in the High Court valuing it at Rs. 62,000/-. An ad valorem Court-fee of Rs. 2,325/- was paid on the memorandum of appeal. It appears that during the pendency of the appeal the zamindari property in the suit vested in the State of Bihar under the Bihar Land Reforms Act, in consequence of which the contract sued upon became impossible of performance. The petitioner thereupon applied for amendment of the plaint deleting all the reliefs claimed in the original plaint and prayed for a decree against defendants Nos. 1 and 3 for recovery of Rs. 10,500/- being part of the consideration money paid under the contract. By an order dated 14th January, 1954, the amendment prayed for was allowed. As a result of the amendment the valuation of the suit was reduced to Rs. 10,500/-. The petitioner-appellant thereafter applied for refund of the difference of the Court-fee paid on the memorandum of appeal and the Court-fee payable on the reduced valuation of the appeal and by an order dated 30th April 1954 passed by this Court a certificate was granted for refund of the amount of Rs. 1,425/-.

(3.) By the judgment and decree passed by this Court on 4th May 1954 the plaintiff's appeal was allowed and he was awarded costs of this Court as also of the court below. The order of the Court was as follows: