RAMAKRISHNA AYYAR Vs. RAGHUNATHA AYYAR

JUDGEMENT

(1.) THIS is an appeal against the judgment of the learned Subordinate Judge of Ottapalam in a mortgage suit. The appeal relates to the matter of costs only, the learned Judge having decreed inter alia that defendant 5 do be liable personally for the costs of the suit. Defendant 5 is the appellant. He was not one of the mortgagors, these being defendants, 1, 2 and 3. He came on record on his own petition as a purchaser of the interest of defendant 2 in the property. Saying come on the record, he adopted, we are told, the written statement of defendant 2. When the case came on for trial defendant 2 did not contest and was ex parte, and defendant 5 proceeded to contest the suit his chief contention being that the plaintiffs were benamidars for defendant 4 who, he said, is the real owner of the mortgage under an assignment deed, Ex. B.

(2.) THE learned Judge found that this contention was frivolous and vexatious and obviously for that reason he has directed that defendant 5 do be personally liable for the costs of the suit. THE contention put forward on his be half is that the learned Judge's order is illegal, because the costs in a mortgage suit are primarily provided for in the mortgage decree itself, and that in fact in the decree in this suit these costs have been provided for in para. 2 of the decree to be mat out of the mortgaged property, in the first instance. While it may be correct according to various authorities which the learned advocate has cited before us that as between mortgagee and mortgagor in a mortgage decree of this kind no separate order making the defendants mortgagors personally liable for the costs can be passed, we have not been referred to any authority which lays down that it is illegal to award a personal decree for costs against a party to the suit who is not himself the mortgagor. That being so, the only question remaining is, whether we can say that the decree of the lower Court regarding these costs is so perverse as to amount to a negation of the judicial discretion which is vested in the trial Court in the matter of costs. In the circumstances of the case, we are not prepared to say that that is so. In these circumstances we hold that the appeal must fail and it is dismissed with costs.