HARGOBIND RAI Vs. DULHIN SANICHRA KUER

JUDGEMENT

(1.) This is an appeal from the order of the District Judge of Shahabad dismissing an objection in execution proceedings. The decree under execution is a preliminary decree for accounts which was drawn up on appeal by the District Judge of Shahabad, after the appeal had been remanded to him by the High Court. The suit was valued at Rs. 5 000 and the preliminary decree directs that the defendant shall bear the costs of the suit, and of the two appeals which are specified in the body of the decree. In the ordinary course the actual decree for costs would not have been made until the stage of final decree was reached; but in the present instance the amounts of costs are specified in the body of the decree itself, so that it cannot be said that the actual assessment of costs is to be postponed until the final result is known.

(2.) Mr. Sharma on behalf of the appellant suggests that it was the intention of the District Judge that the actual assessment should not be made until the final stage, arguing that this must be inferred from the fact that in his judgment he does not expressly say that the assessment of costs to be realised is to be made at once, which should be done if there were to be a departure from the ordinary course; but the decree clearly directs that a certain amount of costs shall be paid by the defendants to the plaintiff. In any view of the matter we cannot in this appeal amend the decree of the District Judge. The High Court in remanding the second appeal had directed that the costs of the appeal in the High Court should abide the result of the enquiry. Mr. Sharma suggests that this meant that the costs should abide the final result. It is suggested on behalf of the respondent that the District Judge correctly understood this direction of the High Court when he interpreted it as meaning that the costs of the appeal should abide result of the appeal which he was rehearing. But although we consider that Mr. Sarma's view of the meaning of this order is correct, we cannot, as I have said, in this appeal in execution proceedings, amend the decree of the District Judge or treat the appeal as an appeal from his decree. The learned Advocate for the appellants says that it appears to be likely that as a result of the rendering of accounts the defendants will be found liable to pay nothing at all; and he has produced the report of the commissioner who was deputed to take accounts in support of that argument. We do not know what the final result of the case may he; but if there is any possibility of its resembling the result forecasted by Mr. Sharma, it would certainly be wrong that the defendant should practically win the suit of which the correct valuation would have been nothing at all and yet should have to pay three times over the court-fees calculated on a valuation of Rs. 5,000 and Pleader's fee calculated on the same amount. We cannot revise the decree of the District Judge and we do not know what may be the ultimate result of the suit; but if the ultimate result should be thus in favour of the defendant, the matter is not beyond remedy. The Court in preparing the final decree must exercise its own discretion in the matter of costs in the final stage; but in making the order for costs the Court should consider the case as a whole and should, ensure that whatever costs may be ultimately payable by the defendant, they should not exceed the amount in the matter of court-fees and Pleader's fees which would be admissible if the suit had been properly valued. Thus the Court preparing the final decree will be able, if the decree of August 29, 1931 should then be found manifestly unjust, to award the defendant such an amount by way costs as may be set off against the decree when the plaintiffs set out to execute it. Execution of the present decree for costs will be stayed until the final decree is prepared.

(3.) With these observations the appeal must be dismissed. We make no order for costs in this Court. Agarwala, J.