THAKUR DAMBER SINGH Vs. KALYAN SINGH

JUDGEMENT

(1.) THIS appeal arises under the following circumstances. A suit was brought to realise the amount of a mortgage. The property mortgaged was mortgagee rights. The facts are somewhat complicated but it is not necessary to mention them in detail. The Court of first instance decreed the plaintiff s suit. On first appeal the decision of the Court of first instance was overruled and the suit dismissed. On second appeal to the High Court the decree of the first Court was restored. In its judgment the High Court says: "we must allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts. We extend the time for payment to six months." The decree of the High Court was drawn up upon one of the High Court s forms. It states that the appeal has been allowed, the decree of the lower Appellate Court set aside and the decree of the Court of first instance restored. It further contains the words "and it is further ordered that the respondent do pay to the appellant Rs. 554-6-9, the amount of costs incurred by the latter in this Court and in the lower Appellate Court". The decree of the Court of first instance which was restored by the High Court was the ordinary mortgage decree in the form prescribed by Order XXXIV. The plaintiff applied to execute the decree of the High Court for costs personally against Dambar Singh (the appellant in the lower Appellate Court and the unsuccessful respondent in the High Court.) Dambar Singh objected that the costs were not payable by him personally and that the decree holder could only obtain them by bringing the property to sale. Both Courts overruled his objection. Dambar Singh comes here in second appeal.

(2.) THERE can be no doubt that, ordinarily speaking, the plaintiff in a mortgage suit gets his costs, if successful, against the mortgaged property and not personally against the defendant. It could not be contended that under the decree of the Court of first instance (subsequently restored by the High Court) the plaintiff could get his costs personally against Dambar Singh. If the decree of the High Court had expressly followed the judgment, we do not think it could be contended that Dambar Singh was personally liable for the costs. Accordingly the respondent is driven to rely upon the words which, we have quoted from the decree of the High Court. THERE cannot be the least doubt that there is no intimation in the judgment that the High Court intended to make Dambar Singh personally liable. It seemed almost certain that under ordinary circumstances in a case similar to this the plaintiff in a mortgage suit would add the costs incurred by him in the High Court to his costs incurred in the Courts below and sell the property to realise those costs. We think that we are entitled in construing the decree in the present case to consider first the nature of the suit, secondly the judgment of the High Court upon which the decree is founded and the general- practice of the Court. Considering these three matters it seems to us quite clear that the intention was that there should be the ordinary mortgage decree awarding the costs incurred in the suit and up to the time of the final decree to be realized by sale of the mortgaged property. It is contended that we are bound by the actual words of. the decree itself and we are not entitled to consider any other matter. The very same question seems to lave arisen in the case of Maqbul Fatima v. Lalta Prasid 20 A. 523 (F.B.) : A.W.N (1898) 157 : 9 Ind. Dec. (N.S.) 696. In that case a decree which had been drawn up in accordance with the requirements of Section 83 of the Transfer of Property Act contained a farther clause that "the defendant should pay to the plaintiffs a sum of Rs. 876, the amount incurred by them. The majority of the Court held that the costs could not be recovered personally against the defendant and that the Court construing the decree was entitled to consider the terms of the judgment. The same point seems to have arisen in an unreported case, Execution Second Appeal No. 871 of 1900, when two Judges arrived at a similar conclusion We have been referred to the case of Muhammad Sadiq v. Ghaus Muhammad 22 Ind. Cas. 42 : 11 A.L.J. 975 and also to the case of Bansgopal Singh v. Rup Narain Singh 19 Ind. Cas. 384. In the first case an authority was relied upon by the learned Judge which has since been dissented from. "The other case seems to turn upon the particular facts of the case and the view which the learned Judge, sitting alone, took as to the construction of the decree." If these cases are inconsistent with the Fall Bench decision and the decision of the Divisional Bench we are bound to follow the latter. While we decide in favour of the appellant, we think it right to say that the form used by the High Court is not strictly correct and applied to mortgage suits. Order XLI, Rule 35, prescribes what a decree of the Appellate Court shall contain, and it would seem that it would be more accurate that in mortgage suits, where it is the intention of the Court that the costs should be recoverable out of the property and not personally against the party, that the decree of the High Court should so state It perhaps may also be considered whether in mortgage suits in which the High Court is making a decree for sale the High Court s decree, instead of merely being a dismissal or affirmation of the decree of the lower Court, should not be in the form prescribed by Order XXXIV directing the property to be sold and stating the amount which is to be recovered from the property, including costs. In a recent Fall Bench ease it was decided that the High Court s decree in a mortgage suit is the decree which is to be subsequently made absolute and not the decree of the Court below. We wish also to say that we do not desire to be understood as boiling that it is not open to the Court in mortgage suits to make a decree under special circumstances, directing that costs ought to be paid personally by a party instead of being recovered as part of the mortgage deb. We allow the appeal, set aside the orders of both the Courts, below and dismiss the application for execution with costs in all Courts. Costs in this Court will include fees on the higher scale.