BRAJENDRA KUMAR SIL Vs. NABA KUMAR SIL

JUDGEMENT

(1.) This matter arises in the following way. The plaintiff opposite party brought a suit for partition valuing it at Rs. 5,100. A preliminary decree was passed by the trial Court and a commissioner was appointed who valued the property at below Rs. 5,000. Against the final decree the petitioner, who was a defendant in the suit, preferred an appeal to the District Judge valuing the appeal at the valuation given by the commissioner. A preliminary objection was taken on behalf of the plaintiff and the other defendants in the suit that the appeal was not maintainable in the Court of the District Judge and the learned District Judge held that he had no jurisdiction to entertain the appeal and returned the memorandum of appeal to the appellant for presentation to the High Court. As regards costs of the hearing before the learned Judge, he ordered: " The appellants will pay the costs of this appeal." This order was construed to mean that the appellants had to pay the full costs of the appeal according to the valuation of the suit or of the appeal. We are told that the costs according to the decree in the appeal came to over Rs. 250, Thereafter, the petitioner made an application before the learned District Judge under Secs.151 and 152, Civil P.C., asking him to revise his order as to costs. The learned Judge held that it was not a matter which could be corrected under Section 152 as there was no arithmetical mistake or error arising from any accidental slip. But he does not seem to have considered whether he could rectify the order under Section 151. The learned Judge in the view he took that it was not a matter under Section 152 rejected the application, as he said that he had no option in the matter, but allowed no costs of the hearing of the application before him.

(2.) Against the aforesaid orders this rule has been obtained. It is argued on behalf of the respondent that the Judge's order according to his view is right, namely, that he had no jurisdiction to interfere with his judgment under Section 152 and that he did not also act improperly in not proceeding under Section 151, for the proper remedy for the petitioner must have been to apply for a review of the judgment. This is quite true, but we have ample powers to revise the orders of the learned Judge. We think that the order passed by the learned Judge awarding full costs of the appeal when returning the memorandum of appeal to the appellants was not a proper order in the circumstances of this case. We are of opinion that the appeal not having been dismissed on the merits, the learned Judge ought to have assessed the fee for the hearing of the preliminary objection before him.

(3.) We accordingly set aside the decree of the District Judge so far as it relates to the order for costs and we direct that the petitioner do pay costs--three gold mohurs--to the respondents as hearing-fee before the Judge.