A V GOVINDASWAMY CHETTY Vs. NARAYANASWAMY NAIDU

JUDGEMENT

(1.) This is a reference by the learned Master and it raises an interesting question regarding the position of a decree-holder who has had the costs awarded to him taxed by the proper officer, but has failed to have the taxed costs entered in the margin of the decree as required by the rules of the Original Side of this Court.

(2.) To appreciate the question that arises for determination, it is necessary to set forth the facts briefly. The petitioner in this Execution Application is the decree-holder in Small Cause Suit No. 3820 of 1942 on the file of the Presidency Court of Small Causes, Madras. He obtained a decree for Rs. 378 odd and costs on 25 November, 1942. The judgment-debtor in that suit happened to be the first plaintiff in Civil Suit No. 37 of 1937 on the file of this Court. In Clause 5 of the decree of this Court in that suit there was a direction regarding costs which was wox ded as follows: That defendants 1 to 4 do from and out of the said funds in their hands mentioned in Clause 4 supra pay to the present next friend of plaintiff 2 the costs of the said plaintiff 2 of the suit when taxed and noted in the margin hereof with interest thereon. The next friend of the second plaintiff referred to here was the first plaintiff who was granted a decree for costs. All the four defendants died after the suit. Defendants 1 and 2 were the trustees of a temple in Coonoor. The present trustee who succeeded the first defendant has been brought on record and he is the respondent in this application. He is represented by Mr. T. A. Ramaswami Reddi who opposes the application.

(3.) The petitioner who is the decree-holder in the suit in the Court of Small Causes, attached the costs awarded to his judgment-debtor who, as already stated, was the first plaintiff in Civil Suit No. 37 of 1937 and it was in prosecution of that proceeding that the present execution application was filed in this Court. When he sought to enforce execution, it was discovered that the first plaintiff in Civil Suit No. 37 of 1937 had, after the decree in that suit, got the costs awarded to him by Clause 5 of the decree taxed by the Taxing Officer, but he had failed to get the taxed costs entered in the margin of the decree. When this was discovered, the present petitioner filed an application for excusing the delay in having this entry made, the time for doing which under Order XVII, Rule 7 of the Original Side Rules is three months. The application was very belated, because it was presented nearly three years after the date of the decree. The Master refused to excuse the delay and dismissed the application. That order has now become final, because no appeal has been preferred on behalf of the petitioner from the decision of the Master.