WAHID ALI Vs. DURGA SHANKAR

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of certain execution proceedings. A preliminary decree for sale was passed on the 3 of February 1920 against two judgment-debtors. Both these judgment-debtors appealed to the High Court. While their appeal in the High Court was pending a final decree was prepared by the Court below on the 3 of September 1920. After this the High Court affirmed the preliminary decree passed by the Court below and dismissed the appeal on the 15 of December 1922. The decree further contained the following words; It is further ordered that the appellants aforesaid do pay the respondents aforesaid the sum of Rs. 727 the amount of costs incurred by the latter in the Court.

(2.) The decree-holders have sought to execute their decree for costs against the judgment-debtors personally without adding them to the mortgage money in the first instance. The judgment-debtors objected to it, but their objection has been disallowed by the execution Court. The learned Subordinate Judge is of opinion that inasmuch as the High Court affirmed the decree of the Subordinate Judge it left it altogether untouched and that therefore, the first Court's final decree did not merge in the appellate decree and that the final decree of the Subordinate Judge and the appellate decree of the High Court were two separate decrees capable of being separately executed without reference to each other. He has further held that the decree of the High Court was a decree for costs against the judgment-debtors personally and he has distinguished a case relied upon by the appellants. There is an authoritative pronouncement by a Full Bench of this Court in the case of Gajadhar Singh V/s. Kishen Jiwan Lal AIR 1917 All 163 that in a suit for sale on a mortgage even when an appeal has been preferred from the preliminary decree, the decree which is to be made absolute is the decree of the final Court of appeal. The view of the Subordinate Judge, therefore, that the first Court's decree did not merge in the appellate Court's decree is not correct.

(3.) It has further been held by a Full Bench of this Court in the case of Maqbul Fatima V/s. Lalta Prasad (1898) 20 All 523 that an order directing the unsuccessful appellants to pay costs of the appeal is merely a formal compliance with the provisions of the Code and is not intended to be directed for the recovery of costs personally from the judgment-debtor. The same principle has been followed in the case of Damber Singh V/s. Kalyan Singh AIR 1913 All 366 and also the case reported in the footnote on page 114 which has been followed in the case of Sadiq Husain Khan V/s. Ummatul Fatima Begam AIR 1918 Oudh 445 and this seems to be in accordance with the prevailing practice of this Court. The case relied upon by the appellants in the Court below, Muhammad I ftikharullah V/s. Banke Lal AIR 1924 All 104, may be distinguished on the ground that the appellate Court in that case had extended the time for payment.