V S MUNUSWAMI MUDALIAR Vs. KANDASWAMI PILLAI

JUDGEMENT

(1.) We think that the lower Court was right in deciding that the plaintiff was personally liable for the refund of the costs, and that they could be recovered in restitution by his arrest or attachment of his property, whatever remedy lay against the assets of the institution. Where a plaintiff who sues as a trustee incurs a liability to costs, the rule undoubtedly is that it is in the first instance a personal liability unless he obtains an order from the Court that the costs are to come out of the estate. The position, particularly as it affects a trustee in bankruptcy under the English law has been discussed by one of us in Panchakshari V/s. Venkataratnam 1934 Mad. 430. That was the case of a defendant against whom an order for costs had been made, but it can make no difference to the principle to be applied : See also Harikishan Das v. Parshotamnand Gir 1934 All. 793. In the present case the original order was that the respondent (defendant 5) should pay appellant (plaintiff) his costs, not that they should be paid to the credit of the institution of which he was trustee; and it is for the appellant so far as the respondent is concerned, to pay them back. This is the clearer because the order of the appellate Court disallowing plaintiff his costs was, we find, based upon his own failure to support his case by going into the witness-box.

(2.) It is further argued that no express order exists, either by the appellate Court, or by the lower Court in ordering restitution, for the respondent of the costs. The contention, as regards the appellate Court, is based on a form of decree (see Civil Rules of Practice No. 92 and Forms 29 and 30) which we do not think is in force in this Court. As regards the form of the lower Court's order we think that in ordering attachment of the appellant's moveables, after finding him personally liable, it has sufficiently complied with the requirements of the case.

(3.) We dismiss the appeal with costs for payment of which the appellant will be personally liable.