LACHMAN DAS Vs. LAKSHMI NARAIN

JUDGEMENT

(1.) This case has been referred to a Division Bench because of an important point of law involved in it. Ganeshi Lal was the receiver of the estate of an insolvent Jagpal Saran. He brought a suit against one Mt, Bhagwati for a declaration that a will in her favour was not genuine and the property devised by the testator passed to the insolvent and not to her. The suit was dismissed with costs, the order being that "the plaintiff do pay Rs. 323-12-0 to the defendant as costs." An application for executing the decree for costs against Ganeshi Lal personally was dismissed by the execution Court on 12 January 1924. The receiver had in the meantime appealed to the High Court and on 14 February 1927 the High Court dismissed the appeal. The order for costs as entered in the decree, was in the following words: And it is further ordered that the appellant aforesaid do pay to respondent 1 aforesaid a sum of Rs. 481-11-0 only the amount of the costs incurred by the latter in this Court; and it is further ordered that the costs incurred in the lower Court be paid as awarded.by the said Court.

(2.) The defendant decree-holder executed the decree of the High Court for costs against Ganeshi Lai personally. The application was resisted on the ground of res judicata on account of the previous dismissal of a similar application and the non- liability of the receiver in his personal capacity. The Court below has dismissed the application holding that the decree could not be executed personally against Ganeshi Lal.

(3.) There is no force in the plea of res judicata. The previous application was for the execution of the decree of the first Court against Ganeshi Lal. That application was dismissed. The present application is for the execution of the decree of the High Court which was passed subsequent to that order and which directed the payment of the costs afresh. The previous order of the Subordinate Judge cannot therefore operate as res judicata when the question is as regards the interpretation of the High Court's decree. We accordingly overrule this plea.