MOHAMAD SADIQ Vs. JAIGOPAL

JUDGEMENT

(1.) IN this case a preliminary decree for sale was passed by the Court of first instance on April 13th, 1914. The present appellant, one of the defendants to the suit, being one of the heirs of the original mortgagors, appealed to the District Court with the result that the decree of the first Court was slightly modified. On June 20th, 1912, a final decree for sale was prepared under Order XXXIV, Rule 5. Meanwhile the appellant had filed a second appeal to this Court. That appeal was dismissed with costs on January 23rd, 1913. The question for decision is whether the appellant is personally liable for the costs given against him by this Court. It is contended on his behalf that those costs are costs subsequent to the decree within, the meaning of Order XXXIV, Rule 10, and should be paid, if possible, out of the proceeds of the sale of the mortgaged property. IN the case of Muhammad Sadiq v. Ghaous Muhammad 22 INd. Cas. 42 : 11 A.L.J. 975 Justice Piggott declined to hold that costs given to a mortgagee by an Appellate Court must be recovered out of the proceeds of the sale of the mortgaged property, if the proceeds are sufficient for the purpose. The case before me is a much stronger case than the one before Mr. Justice Piggott. IN that case the costs in question had been awarded to the mortgagee against the mortgagor before the preparation of the final decree. IN the present case, as stated above, the final decree in the suit was prepared before the passing of the decree of this Court. It is undesirable and probably impossible for me to attempt to lay down any hard and fast rule about appellate costs of this description. But in the present case I have no doubt whatever that the intention of this Court in ordering the appellant to pay the costs of the mortgagee was to make him personally liable for those costs. There is nothing to show that this Court intended that costs should be incorporated in an amended final decree or should be dealt with under Order XXXIV, Rule 10. I am very doubtful whether Rule 10 refers to costs of this description at all. I am disposed to think that it refers primarily to costs incurred in the working out of the final decree for sale. I hold that the appellant is personally liable for the costs now in question and I dismiss his appeal with costs.