UPENDRA NARAIN ROY Vs. BISWESWAR ROY CHOWDHURY

JUDGEMENT

(1.) This is a Rule issued on an application under Section 152 of the Civil P. C. for amendment of the decree for costs made in an appeal from original decree.

(2.) The plaintiffs instituted a suit for the establishment of their title to a half share of the lands of an Osat Taluk and for recovery of possession of their share on partition by metes and bounds. There were two sets of defendants, viz., the co-sharer defendants and the tenant defendants. As regards the tenant defendants, the question in controversy was, whether a nim howla (Ramkanai Gupta) was real or fictitious. If the tenure was real, the plaintiffs would not be entitled to actual possession. If it was fictitious, the plaintiffs would be entitled to possession, by ejectment of the alleged tenants. The plaintiffs who had acquired a share in this nim howla, instituted this Suit on the allegation that the nim howla was fictitious and had no real existence. The defendants who are the petitioners before us, had purchased another share in this nim howla; and before the institution of the suit they had maintained that the nima howla was real. They did not, however, enter appearance during the trial to contest the claim. The Court of first instance held that the nim howla was real and made a decree on that basis.

(3.) On appeal to this Court, it was held that the nim howla was fictitious and that the plaintiffs were consequently entitled to possession by removal of the tenants. The first two defendants ware parties to the appeal but they did not enter appearance and were not represented at the hearing. The decree for costs was made in these terms: "The plaintiffs are entitled to the costs of this appeal." When the decree was drawn up, the following clause was inserted thereto: " It is further ordered and decreed that the defendants-respondents. do pay to the plaintiffs appellants the sum of Rs. 1,800-4 as." This order, as drawn up, entitles the plaintiffs to realise the coats from all the defendants.