ONKAR Vs. HARISH CHANDER

JUDGEMENT

(1.) THIS appeal has been filed against an appellate order of the learned Additional Commissioner, Jaipur, dated 30-12-60. It appears that a decree having been passed against the appellant an application was moved on behalf of the respondent for its execution. The judgment as well as the decree did not mention anything whether any costs were also to be paid by the appellant to the respondent. The lower court accordingly disallowed the application for the costs. In appeal, however, the learned Additional Commissioner took a rather peculiar view. It observed that from the perusal of the record although no specific order as to costs had been made in the judgment or decree, but as costs had been made in the judgment or calculated and entered in the prescribed form of the decree it indicated that the costs were payable by the appellant to the respondent. The contention before us with which we entirely agree is that as the judgment and decree did not give any direction about the costs, the lower court had no authority to direct the appellant to pay the costs as well. The learned court perhaps forgot that in the form of the decree the costs of both the parties are calculated and entered as a matter of course and unless there is a clear direction in the judgment as well as decree that costs be awarded to the successful party, it means that no costs are to be paid. The law relating to costs is given in sec. 35 of the C. P. C. Ordinarily a successful party is entitled to costs which have to be determined by the court finally decreeing the suit on sound legal principles but where the judgment and the decree is silent about the costs it means that the successful party has not been allowed any costs by the court. Usually where the costs are not allowed some reasons should be given by the court. If no such reasons are available in the judgment or the decree the successful party may if so advised file an appeal on this ground. In the present case the respondent could have filed an appeal but instead of doing so it approached the executing court which had no jurisdiction to direct the payment of costs which were not actually allowed by the court concerned. A court cannot import into a decree for costs or anything, which is not expressly or by necessary implication specified therein for the simple reason that an executing court cannot go behind a decree and enlarge its scope. An authority on this point is found in A. I. R. 1956 Travancore cochine page 271 (1 ). In our opinion, therefore, the learned court completely misdirected himself in allowing the costs to the respondent. Accordingly the appeal is allowed the decision of the lower court is set aside with the direction that no costs shall be realised from the appellant in the execution of the decree pending before the lower court. .