ANNADA MOHAN ROY Vs. ATUL CHANDRA CHAKARBARTI CHOWDHURY

JUDGEMENT

(1.) The appellant in this case obtained a decree for rent for Re. 5,292 annas 10, 5 gandas together with Rs. 551 annas 13 as costs. Under the same decree the defendant also was to get from the plaintiff the sum of Rs. 345, 1 anna on account of costs. There was an appeal against that decree by the plaintiff on the question whether the lower Court was right in holding that the plaintiff must proceed against certain property in execution of the rent decree and his appeal succeeded.

(2.) In the decree of this Court it was stated that "the decree of the lower Court be varied in the manner following, namely, that the decree, in so far as it directs that the plaintiff shall recover the decretal amount with costs and interest by auction sale either of miras ijara or the property given in security, be and the fame is hereby set aside and in lieu thereof it is ordered and decreed that the execution of the decree for the realisation of the decretal amount do proceed against the properties in Schedules A and B of Schedule I, if still unsold, and then against the other properties of the defendants: And it is further ordered and decreed that save and except the variation as aforesaid, the decree of the lower Court be and the same is hereby affirmed." The decree then goes on to state that the plaintiff would be entitled to certain costs of this Court as also the costs of the lower Court from the defendant. Nothing was said as to the costs payable by the plaintiff to the defendant.

(3.) The plaintiff decree holder applied for execution of the decree and realised the entire amount of the decree without getting off the amount of costs which the defendant was to get from him under the decree under the provisions of Order XXI, rule 19, Civil Procedure Code. The defendant then made this application for execution of the decree in respect of Rs. 245, 1 anna, the amount of costs awarded to him against the plaintiff. The plaintiff raised objections to the execution of the decree which were disallowed by the Court below.