(MAHARAJ) BAHADUR SINGH DUGAR Vs. BASIRUDDIN AHMMAD

JUDGEMENT

(1.) The appellant is the decree-holder in a mortgage suit. The suit was originally dismissed by the lower Court. There was an appeal to this Court by the appellant which was allowed, and the order passed by this Court in respect of costs was in these terms: " The appellants are entitled to costs of this Court. We assess the hearing fee at Rs. 300. The costs of the lower Court-will be dealt with by that Court, The decree was prepared in pursuance of the ordering portion of the judgment in which the direction as to the payment of costs is thus given: "It is ordered and decreed that the defendants respondents (respondents in the previous appeal are the present respondents along with some others) do pay to the plaintiff-appellant the sum of Rs. 1,121-9-7 (as per details below), being the amount of costs incurred by him in this Court with interest thereon. " The suit was sent back to the first Court for re-trial on the other issues and was ultimately decreed. In the decree passed by the first Court the amount of costs ordered by the High Court was not inserted. The only costs mentioned in that decree were those awarded by the first Court. The appellant executed this mortgage decree and sold the mortgaged properties. But the sale proceeds proving insufficient, he subsequently applied against the mortgagors for a further decree under Order 34, Rule 6. The present respondents who are transferees of a portion of the mortgaged properties were not, and could not, be made parties to this application under Order 34, Rule 6, and the decree under that rule was passed against the mortgagor alone. The decree-holder thereafter applied for execution of the High Court decree awarding him costs of the appeal against the persons and property of the defendants in the suit including the present respondents. The learned Subordinate Judge his held that the, decree cannot be executed in the form in which the appellant prays for execution. The reasons given by him are twofold: First, that the order for costs passed by the High Court should form a part of the total amount found due under the mortgage and can only be realized by the sale of the mortgaged properties in question; and secondly, that the plaintiff's application is barred by limitation. With regard to the first point the appellant argues that the order for cost; was passed before the final decree and therefore it could not be incorporated in that decree and hence it can be executed as an independent decree. Order 34, Rule 2 indicates the procedure to be followed in ascertaining the amount due on the mortgage, which should be made a charge on the mortgage-property, The form of the mortgage decree, as given in Appendix D, Form No. 4, shows that costs in mortgage suits forming part of the amount decreed in the suit should be realized by the sale of the mortgaged properties. This provision of the law indicates that the costs in a mortgage suit are not to be treated as independent claims by the mortgagee irrespective of the rights under the mortgage, but that such costs should form part of amount decreed in the mortgage suit to be realized in accordance with the procedure laid down in the Code. It makes no real difference if the order for costs was passed before the final decree was drawn up. In fact every order for costs is passed before the final decree is drawn up and the order for costs passed during the pendency of the suit and that passed at the conclusion of the trial stand upon the same footing. The question with regard to the character of the decree for costs passed by the appellate Court at a preliminary stage arose for consideration in several oases. In Raj Kumar Singh V/s. Shoo Narayan Sahu [1908] 35 Cal. 431, the facts were very similar to those of the present case. There the plaintiff obtained a mortgage decree against the defendant, but not for the full amount claimed. He appealed to the High Courts against that portion of the decree which was not in his favour. The High Court modified the decree of the lower Court and ordered the defendant to pay to the plaintiff the sum of Rs. 500 for costs. It does not appear from the report whether this was made a part of the decree of the first Court; but it appears that the plaintiff executed this decree for costs and applied for sale of some of the properties of the defendants other than the properties mortgaged. The learned Judges, however, held that the decree for costs was a part of the mortgage decree and that the decree-holder must proceed in the first instance against the mortgaged properties. It is only in the event of the mortgaged properties proving insufficient to satisfy the mortgaged decree that the decree-holder can proceed against other properties in the manner provided in Section 90, Transfer of Property Act (now Order 34, Rule 6, Civil P. C.). This case followed the Full Beach case of Maqbul Fatima V/s. Lalta Prasad [1898] 20 All. 523. The same view has been taken by the Madras High Court in the case of Kamalamma V/s. Komandur Narasimha Charlu [1907] 30 Mad. 464 and by the Allahabad High Court in Dambar Singh V/s. Kalyan Singh [1917] 40 All. 109.

(2.) It appears therefore to be well established that the costs awarded in a mortgage suit follow the character of the amount decreed in the suit and form part of the entire decretal amount to be realised from the mortgaged properties. This contention of the appellant therefore fails.

(3.) On the view we have taken on the first question it is not necessary to consider the second point, namely, whether the appellant's application for execution of the High Court decree is barred by limitation. The decree was passed by the High Court on the 27 May 1919. The application for execution of this decree was made on the 22 December, 1921. It was prima facie barred. It has been submitted, however, that in 1919 the appellant had presented an application for execution of the decree which was dismissed for want of prosecution, and that this saved his claim from limitation under Art. 182, Clause (5), of the Indian Limitation Act. That application was not, it seems, in accordance with law within the meaning of Clause (5), as it did not contain all the particulars mentions in Order 21, Rule 11. For example it did not indicate the mode in which the decree-holder wanted the assistance of the Court to execute the decree, that being the really essential matter in an application for execution so as to enable the Court to take proper steps.