LAWS(PAT)-1957-3-14

RAMBILASH SAH Vs. RADHAKRISHNA PRASAD SAH

Decided On March 27, 1957
RAMBILASH SAH Appellant
V/S
RADHAKRISHNA PRASAD SAH Respondents

JUDGEMENT

(1.) The only point raised by Mr. H.K. Banerji in support of the plaintiffs' appeal from the judgment of reversal of the court of appeal below disallowing costs to them against the defendants first party -- respondents is that the court of appeal below has erred in law in reversing the decree for costs awarded to the plaintiffs against the mo-itgagees defendants first party on their appeal against the decree for costs only to the court of appeal below. Mr Banerji has contended relying on Sapenswar Pati v. Brindaban Panda, AIR 3934 Pat 397 (A) that the question of cost was within the discretion of the first court which awarded to cost to the plaintiffs, and therefore, the lower appellate court should not have interfered with the discretion of the first court and substituted its own discretion in its place and set aside the order of costs awarded to the plaintiffs against the mortgagees, defendants first party, on their appeal to it.

(2.) In my opinion, there is no substance in this contention. It is true the question of awarding costs is within the discretion of the court, and, the appellate court should not ordinarily interfere with such a discretion and substitute its own discretion in its place, but where the question of principle is involved, and a court has awarded or disallowed costs without having regard to the well known 'principles' in the matter, it is open to the appellate court to interfere with such a discretion, if it finds that such a discretion has been exercised in violation of settled principles of law, and that the ends of justice require that an order for cost should be set aside.

(3.) The just mentioned case relied upon by Mr. Banerji as well as the cases of Mangobinda Sadhu v. Satya Niranjan Cbakraverty, I.L.R. 8 Pat 190: (AIR 1928 Pat 482) (B) and Lakshmi Narain v. Mt. Mohamdi Begam, AIR 1932 Oudh 123 (C) which have been relied upon by the court of appeal below, clearly lay down the principle that in a redemption suit the mortgagee is entitled to costs, unless he hast been guilty of misconduct or has refused a valid tender of the amount due to him. The court of appeal below has held that the principles laid down in Order 34, Rule 7 have not been followed by the first court in allowing costs to the plaintiffs. Order 34, Rule 7(1)(a) and (b), with which we are concerned, are in the following terms: