BANARSI PRASAD Vs. MAHABIR PRASAD SAHU

JUDGEMENT

(1.) It is not disputed in this appeal that the appellant is liable personally for the costs of the Appellate Court a small sum amounting to somewhere between Rs. 50 and Rs. 60. The method by which it should be realized is a matter for the parties themselves and is no concern of this Court. As regards the costs of the first Court, it seems to me that the matter is perfectly clear.

(2.) Mr. Bose on behalf of the respondents contends that he has a right to recover the costs against defendants second party who are represented by the appellants in this Court. I do not think there can be any doubt that whether he is so entitled or not depends upon the construction to be placed upon the decree of the trial Court. Heald J. in Maung Po Mya V/s. M.A.S. Firm A.I.R (1931) . Ran 153 lays down certain rules which, the learned Judge was of the opinion, should be used by the Courts to guide them in the question of the construction of a decree. So far as the rules are concerned, (if I may say so with respect to the learned Judge), I agree, but the purpose for which they should be used seems to me to be an entirely different matter. Having regard to what the learned Judge says, it does seem that in making the order in the suit the Court, all things being equal, should consider the advisability of making a personal decree against the party in such a case as the present.

(3.) But it depends, as I have already stated, entirely upon the circumstances of each case. The order of the Court in this case seems to me to be capable of construction in one way only and that is that it is an ordinary mortgage decree. The order is in the following form: That the suit be decreed with costs on contest against defendants 3 to 9 and ex parte against others.