RAKHAL CHANDRA MONDAL Vs. GOUR GOPAL DUTTA

JUDGEMENT

(1.) Those two appeals are directed against a judgment which disposed of two applications for setting aside a sale held under the provisions of Regulation VIII of 1819. The suits were brought one by the putnidar and the other by one of the durputnidars and the allegations were that there had been fraud on the part of the durputnidars, Defendants Nos. 3 to 6, who had agreed to pay the rent to the landlord and that the said durputnidars had further committed fraud by engaging a benamidar to buy the property. It was also said that the notices required to be served under the law had not been properly served by the landlord. Now the learned Judge went into the questions of fact and found that the durputnidars Defendants Nos. 3 to 6 who had agreed to pay the rent had obtained from doing so and brought about the sale in order to purchase the putni themselves and that they had engaged a benamidar to purchase the property, when the sale took place. Ha also found that the notices were not properly served in accordance with the law. He thereupon ordered that the sale should be set aside. His order as to costs was that the Defendant No. 1, that is, the present appellant-the landlord should pay the costs of the plaintiffs and that the other defendants should boar their own costs in both the suits. Now, the costs for which the landlord has been made liable amount to Rs. 1,758 odd in one suite and to Rs. 886 odd in the other and tine appeals are preferred by the Defendant No. 1, the landlord, against this order as to costs.

(2.) An objection is taken on behalf of the respondents-the durputnidars-that no appeal lies against such an order. I think that is right. Under the present Civil P. C., the Court which tries the suit has full power to determine by whom the costs are to be paid. The words of the section are "the costs incidental to all suits shall be in the discretion of the Court and the Court shall have full power to determine by whom such costs are to be paid." Unless we read those words in a very restricted meaning which has not been the practice in this Court, I think it is clear that we have no authority be interfere wish the learned Judge's discretion. I think further that the learned judge exorcised his discretion with considerable care. It is impossible to read his judgment without coming to the conclusion that it was the zamindar who contributed to the length of the case by his attitude. Further, there is this peculiar feature of the final order that the learned Judge did not order reconveyance of the property but simply set aside the sale. He also pointed out that the zamindar recovered all the rents due to him. I think, therefore, on that ground, the learned Judge had discretion to deal with the matter of costs and he exercised that discretion, so far as I can see with care. For the reason given, I am of opinion that we ought not to interfere with the order complained of. The result, therefore, is that these appeals are dismissed with costs-three gold mohurs in each case-- two gold mohurs in each case to the durputnidars, respondents, represented by Babu Girija Mohan Sanyal, one gold Mohur to Babu Bireswar Bagchi's client in Appeal No. 307 and one gold mohur to Babu Jatindra Mohan Chowdhury's client in Appeal No. 308. B.B. Ghose, J.

(3.) I agree.