SM HEMANGINI DEVI Vs. SARAT CHANDRA BASU

JUDGEMENT

(1.) This is an application for amendment of a decree and it arises under the following circumstances: The applicant Sarat Ch. Basu was originally the sole defendant in a suit for partition instituted by the plaintiffs-opposite party. He filed a W.S. on 26 November 1917. Subsequently there was an amendment of the plaint, by which the respondent Bepin Behary Choudhury was added as a defendant and he filed a W.S. on 27 May 1919. I should mention here that after the amendment by which Bepin Behary Choudhury was added as a co- defendant the plaintiffs were directed to pay and bear their own costs caused by such amendment. On 13 November 1919 the suit came up for hearing before C.C. Ghosh, J., and he dismissed the suit with costs, holding that it was barred by limitation. Thereupon the plaintiffs preferred an appeal which came up for hearing on 1 March 1920 before the Court of appeal consisting of Mukherjee and Fletcher, JJ. The petitioner states in his petition that he instructed his solicitors not to appear and contest the said appeal, and it appears that in fact he did not appear in the appeal. The learned Judges of the Court of appeal allowed the appeal, and in their judgment directed that "the costs of the appeal would be costs in the suit," but they said nothing in that judgment regarding the costs of the hearing and the trial before C.C. Ghosh, J. In due course a decree was drawn up and this is the decree which is in dispute before us. The petitioner's case is that he was not aware of the contents of the decree and that as drawn up it was not in consonance with the judgment. The material portion of the decree states as follows: It is further ordered and decreed that the costs of the original hearing of this suit in its ordinary original Civil Jurisdiction and of the re-trial hereby ordered and the costs occasioned by the said appeal do abide the result of the said re-trial.

(2.) The petitioner contends that in these terms the decree was not in consonance with the judgment. On the case going on remand certain events happened and there was an application for amendment of the plaint which came up for hearing before Rankin, J. On 28th June 1922, Rankin, J. allowed the amendment and in his judgment directed the plaintiffs to pay all costs of the present petitioner and of the defendant Bepin subsequent to 27 May 1919 up to the date of the said order exclusive of the costs of the appeal. I may quote here the relevant portion of the judgment of Rankin, J.: In the same way I cannot make any order as regards the costs in the Court of appeal, but since the last W.S. was filed there was a hearing before Ghosh, J., as to the costs of which the Court of appeal has made no order and there have been several applications to me when the suit came on for trial and a remand case, and I propose to order that as a term of the leave to amend, the defendants are to have the costs incurred subsequent to the filing of the written statement on 27 May, 1919 (but exclusive of the costs of the Court of appeal) to be dealt with by special taxation.

(3.) He further said: In any event I make an order that the plaintiffs will give security for the costs of the two defendants at present on the record and for this purpose the costs of the Court of appeal and those now ordered to be paid are to be excluded. I shall make no order touching those costs of appeal at all.