UMESH CHANDRA DUTT Vs. BIBHUTI BHUSHAN PAL CHOWDHURY

JUDGEMENT

(1.) THIS is an appeal preferred by the defendants judgment-debtors against the decision of the learned District Judge of Nadia, dated the 8th December 1916, modifying the decision of the Subordinate Judge of the same place. The fasts out of which the present appeal arises are as follows : The plaintiffs brought a suit for recovery of possession of certain land and for mesne profits. They succeeded in that suit. The case then went before a Commissioner for ascertainment of mesne profits and demarcation of the land of which possession was to be recovered. Before the Commissioner, the parties arrived at an agreement, and under the terms of that agreement, the matters were adjusted between the parties and the question of costs was dealt with in this way in clauses 3 and 4; "Regarding the costs of this execution case, the Court costs incurred in taking possession and in ascertaining the amount of wasilat, which will be decided by the Court to be legally due to the decree-holders will be obtained by the decree-holders, from the judgment debtors"; and " besides the above, the decree holders will get from the judgment-debtors an additional sum of, Rs. 50 as costs." The case then went before the Subordinate Judge and he allowed certain sums as costs payable under the "terms of the arrangement arrived at between the parties. The plaintiffs, being dissatisfied with those amounts, appealed to the Court of the District Judge, and the District Judge has allowed further and other sums than those allowed by the Subordinate Judge. Now, if it is assumed in the present case that this is a decree or an appealable order, then an appeal would involve a question of costs only. If it is a non appealable order, it is quite clear that there cannot be an appeal. Now, what is the question of principle involved in this case? There is nothing except that one Judge thinks that the plaintiffs should be awarded more than what the first Court allowed. There is no question as to any difficult construction of the terms of the agreement arrived at between the parties or any similar question, Similarly, there is no question as to what amount must be allowed to the plaintiffs under the terms of the arrangement. It is quite clear that, in a case like this, the appeal raising the question of costs only, where no question of principle was involved, was not competent and could not be heard and decided by the learned District Judge. In my opinion, we ought to set aside the judgment and order of the learned District Judge and restore the judgment and order of the Subordinate Judge. The defendants must have their costs in this Court and in the lower Appellate Court. Cuming, J.

(2.) I agree.