SOMASUNDARAM PILLAI Vs. MUTHUMANICKA NADAR

JUDGEMENT

(1.) This is a civil revision petition filed by the plaintiffs in O.S. No. 855 of 1926 on the file of the District Munsif of Chidambaram. They filed the suit against the defendants for a declaration that the mortgage bond executed by the plaintiffs on 3 February 1926 in favour of defendant 1 for Rs. 800 was not supported by consideration to the extent of Rs. 575 alleged to have been advanced in cash at the time of the mortgage, the remaining Rs. 225 being the amount mentioned in the mortgage deed as due to a prior mortgage which defendant 1 (mortgagee) undertook to discharge himself. The plea of the contesting defendant was that out of Rs. 575 mentioned in the plaint, he did not make payment to the extent of Rs. 275 and to that extent want of consideration was admitted. But in respect of the remaining amount of Rs. 300, the defendants pleaded that the plaintiffs case was false and that the mortgage was supported by consideration. Issues were framed, and the case was adjourned for trial from time to time. In the meantime, another suit O.S. No. 818 of 1926 on the file of the same Court raised the question as regards the payment of Rs. 300 out of the Rs. 575 which was really the matter in dispute in O.S. No. 855. After the disposal of the Suit No. 818 of 1926, the following additional issue 9 was framed in Suit No. 855 of 1926: Is it open to plaintiffs to contend that Rs. 300 have not been paid by defendant 1 to defendant 2 and that it is not binding on them in view of the decision in O.S. No. 818 of 1926 on the file of this Court.

(2.) The case was adjourned from time to time, even after the decision in O.S. No. 818 of 1926 was passed and after the additional issue was framed. Finally the plaintiffs applied to the District Munsif for leave to withdraw the suit with liberty to file a fresh suit in respect of the same subject-matter, Under Order 23, Rule 1. It would appear that the contesting defendant did not raise any objection to the plaintiffs prayer to withdraw the suit being allowed. That probably is the reason why the order passed by the learned District Munsif on 5 November 1927 allowing the plaintiffs to withdraw the suit with liberty to sue again does not contain details as regards the nature of the defect, etc., which necessitated such an application by the plaintiffs. The District Munsif by the order of that date gave the plaintiffs liberty to withdraw the suit with liberty to sue again. As regards costs with which alone we are now concerned, this is the order passed by the District Munsif, "under the circumstances of the case no order as to costs." The mortgagee, defendant 1, felt aggrieved by that order in so far as it did not allow him costs. He therefore preferred an appeal to the District Court, South Arcot, against the order passed by the learned District Munsif regarding costs. On appeal the learned District Judge came to the conclusion that the plaintiffs really had no sufficient reason for being allowed to withdraw the suit at that stage with liberty to sue again. But as defendant 1 did not challenge the order of the lower Court in so far as leave to file a fresh suit was concerned, but was content to attack it only insofar as it did not award him (defendant l), costs, the learned District Judge held that the first Court was in error in not awarding costs to defendant 1 in the case. He accordingly modified the order passed by the District Munsif and directed that the order allowing withdrawal of the suit etc., will be subject to the plaintiffs paying defendant 1's costs within a month from the date of the District Judge's order. The plaintiffs have preferred this civil revision petition against the District Judge's order.

(3.) The first point raised before me by the learned advocate for the petitioners was that no appeal lay to the lower appellate Court against the order passed by the District Munsif Under Order 23, Rule 1, Civil P.C. He argued that the order passed Under Order 23, Rule 1 is not a decree and that an appeal would lie against an order only if the same had been specifically provided for either Under Section 104 or Under Order 43, Rule 1, Civil P.C. Seeing that no provision is made for an appeal from such an order as the one passed by the District Munsif in the present case the learned advocate argued that an appeal to the lower appellate Court was incompetent and that the lower appellate Court's order should be reversed on that ground. The learned advocate for defendant 1 respondent agreed with the learned advocate for the petitioners, (and I think quite properly), that no appeal lay in such a case. It is clear that no appeal would lie against a decision relating to costs only when no appeal will lie from the order passed on the merits in the proceedings in relation to which the question of costs arises. When no appeal is provided for, from an order on the merits no appeal will lie against that portion of the order which related to the award of costs only. The question was discussed by Sir Richard Garth, C. J. and Wilson, J., in a very early case reported as Balkissen Doss V/s. Lachmeeput Singh [1882] 8 Cal. 91. The learned Judge observed as follows: If an order is itself appealable as affecting the jurisdiction of the Court or the merits of the case, an appeal will lie from that part of the order which relates to costs; but, as in the case of decrees, in those cases and those cases only whore the order is appealable, will an appeal lie against the direction as to costs, which is ancillary to the order.