DAULATRAJ Vs. KALICHARAN GHOSH

JUDGEMENT

(1.) This is an application on behalf of the plaintiff for an order that the execution of certain orders, dated 16 July and 10 September 1931, for costs be stayed until the disposal of the suit. These were interlocutory orders. Mistakes in procedure had been made by the plaintiff, and he was ordered to pay the costs of the applications necessitated by his mistakes.

(2.) I have no doubt that according to the English practice in the King's Bench Division, as inherited from the Common law Divisions, the practice has always prevailed of having no taxation of costs till the termination of the action. This practice did not apply in the Court of appeal. I have already dealt with the point in the case of Kedarnath Bhutra V/s. Johormull Bhutra . To the decisions cited in that judgment I would add the case of Phillips V/s. Phillips [1879] 5 QBD 60. In this case it was asserted by counsel that such was the practice in the Common Law Divisions, and this was not dissented from either by the other side or by the Court. In Ch. 36, Clause 20 of our Rules it is provided that within three months from the date of the signing of the decree or order awarding costs, the party claiming shall leave in the Taxing Office an office copy of the decree or order and lodge a bill with the vouchers and signatures of counsel.

(3.) There is a proviso to the clause stating that where the costs of an interlocutory application or hearing have been awarded and have not been previously taxed or paid they may be included in the bill for the whole case. It is clear therefore that according to our practice a person to whom such costs have been awarded has a choice between proceeding with taxation and execution at once and leaving both taxation and execution until after the final determination of the suit. In my view, it is convenient that some settled rule of practice should be laid down, and I propose to adhere to the rule laid down by me in the case to which I have referred. Costs in a suit ought to be set off between the parties and in my opinion, it is wrong that either a plaintiff or a defendant, who may be a man of straw, should be paid costs upon interlocutory applications and should execute orders for costs forthwith made upon interlocutory applications, when it may be that the party will lose the suit in the end, and it will be found that he has nothing with which to meet the final order for costs which may be made against him.