GANPATSAO KALAR Vs. JAGO KALAR

JUDGEMENT

(1.) MACNAIR , J.C. 1. The plaint asked for a preliminary decree for sale of mortgaged property. There was a further prayer which related only to defendant 2 for a personal decree on the ground that this defendant had reduced the value of the security; defendant 2 opposed both claims. The plaintiff was held to be entitled to a mortgage decree but not to a personal decree. The trial Judge did not give the plaintiff the full costs incurred for witnesses, but passed no order with regard to the costs incurred by defendant 2. The lower appellate Court held that the order regarding costs was opposed to the principle laid down in Section 35(2), Civil P. C., and directed that the plaintiff should bear part of the costs incurred by defendant 2 in the first Court.

(2.) IN second" appeal it is urged that no principle was involved, and therefore the lower appellate Court could not interfere with the discretion of the trial Court. The respondent's counsel contends on the authority of Balaram v. Nanuram (1888) IC P L R 154, that the Judge of first appeal can substitute his discretion for that of the first Court even if no question of principle is involved. I respectfully state my opinion that the correctness of the observation in that decision is doubtful. I do not think that any other High Court takes the view that an' order regarding costs passed with due attention to the provisions of law should be varied merely because the appellate Judge would have passed a different order if he had been trying the original suit. But it is unnecessary to consider the matter.