KANNU LAL Vs. BHAGWAN DAS

JUDGEMENT

(1.) The trial Court had to interpret a decree of this Court. The mortgagor has appealed here from a decree for sale and the decree of this Court was: the decree of the Additional Subordinate Judge of Budaun be confirmed and that this appeal be and here by is dismissed, and it is further ordered that the appellants aforesaid do pay to respondent 1 aforesaid the sum of Rs. 578-5-0 the amount of costs incurred by the latter in this Court, and it is further ordered that the costs incurred in the lower Court be paid with interest thereon as awarded by the said Court.

(2.) The decree-holder put into execution as a simple money decree against the mortgagor a decree for a sum of Rs. 578-5-0 the costs of this Court. The trial Court held that this Court had not granted a personal decree but that the amount should be included in the total amount for which the property was to be sold under Order 31, Rule 5, Civil P. C, in a final decree for sale and that only on the property not being found sufficient for the payment of the amount and when a simple decree if one is permitted, is obtained under Rule 6, that a personal liability of the mortgagor arises. Mr. Kamala Kant Varma was very persuasive as he generally is in inducing this Court to hold that the opinion of the trial Court was in conflict with the rulings of this Court. He placed all the rulings before the Court starting with the Full Bench ruling in the case or Maqbul Fatima V/s. Lalta Prasad [1898] 20 All. 523. The other rulings placed by him before the Court were Dambar Singh v. Kalyan Singh [1917] 40 All. 109, Amina Bibi V/s. Rama Shankar Misra [1919] 41 All. 473, Wahid Ali V/s. Durga Shankar, A.I.R. 1926 All. 313 and Khairunnissa Bibi v. Oudh Commercial Bank, Ltd, The true principles of interpreting such a decree are declared in the Fall Bench ruling. I do not think that that ruling can be distinguished from the present case on the alleged ground that it did not deal with the High Court decree but with a decree of the trial Court. When a decree of the High Court exists there cannot be a separate decree of the trial Court. It is true that at p. 526 of the report there does appear a sentence: As regards the costs of the appellate Court, there is no controversy in this appeal.

(3.) The meaning possibly conveyed by these words was that it was admitted by the parties that costs of this Court would form part of the mortgage money and it was only with respect to the costs of the Court of first instance that it was contended by the decree-holder respondent in that case that he was entitled to recover that amount of costs from the person of the mortgagor. The learned Judges decided that the contention of the decree-holder could not prevail. In that case also the portion of the decree which their Lordships had to interpret was: It is further ordered that the defendant aforesaid do pay to the plaintiff aforesaid the sum of Rs. 876-8-0, the amount of costs incurred by them in this Court.