RADHA PERSHAD SINGH Vs. RAM PURMESWAR SINGH

JUDGEMENT

(1.) IN this case there have been changes of parties, as frequently happens when a litigation extends over many years; but they have made no difference to the present question, and it will be convenient to speak of the Appellant and respondents as if there was no change. So speaking of them, the Appellant has been ordered to pay to the Respondents the costs of a litigation with them. He now seeks to set off against those costs the costs of a prior part of the same litigation which were awarded to him; and the question is whether his right to those prior costs has been displaced by a subsequent decree in the later part of the litigation. In the Court below the Appellant was the Plaintiff, and the Respondents were the Defendants. The suit was for the recovery of certain lands; and the Respondents set up a defence of the law of limitation. That issue was decided in their favour by the Subordinate Judge on the 31st of July, 1808, and in consequence the Appellant's suit was dismissed. An appeal was presented to the High Court, who delivered judgment thereon on the 26th of April, 1869. By their decree they reversed the decree of the Subordinate Judge, disallowed the defence of limitation, and ordered that the Respondents should pay to the Appellant the sum of Rs. 2499 13a. 5p., being the amount of costs incurred by him in the High Court with interest; and further ordered that the Respondents should pay to the Appellant the costs incurred by him in the Lower Court with interest. With that order the suit was remanded. The litigation was then fought with various fortune, and came up twice to the High Court. On the second occasion the High Court gave a final decree in favour of the Respondents. That decree was pronounced upon the 10th of June, 1874, when the Appellant's suit was dismissed, and he was ordered to pay the costs of the suit generally. The decree has been, so far as regards costs, affirmed by Her Majesty in Council; but the construction and effect of it are not in any way altered by that affirmation.

(2.) THE Respondents applied to the Subordinate Court for execution for their costs, and the Appellant then claimed to set off against the costs claimed by the Respondents the costs which were due under the decree of the 26th of April, 1869. It may be well to mention that an application had been made by the Appellant for payment of those costs soon after they were awarded to him, but it appears to have been thought proper that the question should stand over until the final determination of the suit. The amounts claimed for costs by the Appellant were, first, the sum found by the High Court itself on the 26th of April, 1869, to be duo for expenses in that Court; and secondly, an amount of Rs. 5806 odd, which were found by the Subordinate Court on a previous occasion to be due in respect of the regular suit, as it is called, disposed of by the Court of the Subordinate Judge on the 31st of July, 1868. Mr. Brett, the Judge of Shahabad, allowed those amounts to be set off by the Appellant against the claim of the Respondents, and he made an order to that effect on the

(3.) IT has been mentioned that there were two amounts claimed by the Appellant under the decree of 1869. With regard to the first, the costs incurred in the High Court on the appeal decided in 1869, their Lordships consider that the Appellant is entitled to set those off against costs now claimable by the Respondents.