SETH DEVIKISHAN GOPIKISAN Vs. CHAMPALALSA BONDRUSA

JUDGEMENT

(1.) THE present appellants, judgment-debtors, were impleaded in a mortgage suit as subsequent purchasers of part of the mortgaged property. The mortgagee was granted a preliminary decree for sale. The mortgagor did not appeal, but the present appellants, the subsequent purchasers, did, and that appeal failed. The Divisional Bench of the Judicial Commissioner's Court ordered that the costs of the appeal will be borne by the appellants. Subsequently an application was made in the High Court by the decree-holder for an amendment of the decree in respect of the order regarding costs, and the following order was passed, the non-applicants being absent although served: It is clear that the costs referred to in the decree as the costs of the respondent were the costs of respondents 1, 2, 3 (the plaintiffs), and it is these costs that are to be paid by the appellants (defendants 3 and 4). The decree be amended so as to make this clear.

(2.) IN executing his decree the decree-holder asked that this decree for costs amounting to Rs. 695-12-0 should be executed against these particular judgment-debtors personally. The judgment-debtors resisted, contending that the costs awarded in appeal against the mortgage decree formed part of the mortgage debt and that the same should first be realized from the sale of the mortgaged property alone along with the debt, and that the deficit could be realized personally from them only if the sale of the mortgaged property fell short of the amount decreed with the costs. Reliance was placed on Order 34, Rules 4 and 6, Civil P.C. The executing Court held that the subsequent purchasers were personally liable for the costs which had been awarded against them in appeal, and it is against this order that they have now appealed.

(3.) NOW , the decision in the Madras High Court does not go so far as to cover the actual circumstances in the case before me. The person who was there held liable for a personal decree for costs was not a subsequent purchaser of part of the mortgaged property but a son of the mortgagor. But in any event I do not consider that it is necessary to resolve any conflict that there may be in the views enunciated in the two judgments. No doubt it is the exception to impose a personal liability for costs in a mortgage suit, particularly so when the matter in dispute is between the mortgagor and the mortgagee alone. But it appears to me that in this particular ease it would certainly be an unfair hardship on the mortgagor if the property mortgaged were to be saddled with the costs awarded against the present appellants and against them alone, in the present case. The mortgagor did not contest the decision of the trial Court; that was done only by the subsequent purchasers of the mortgaged property, and their appeal failed signally. It is of no avail for the learned Counsel to contend that he was fighting the mortgagor's battle and that the mortgagor should share in the costs. In fact what he is asking is that the mortgagor should bear, if possible, the entire amount of the costs. The mortgagor wisely realized that it was no use spending money in preferring a useless appeal, and it does not seem just that the balance which may remain due to him after the sale of the property should be diminished by the very substantial costs which the present appellants have incurred by fighting an infructuous appeal with which the mortgagor decided to have nothing to do. This case is eminently one in which the ordinary rule of the costs in a mortgage suit being amalgamated with the money realizable by sale of the mortgaged property is not to be followed, and it appears, although it is not absolutely clear, that this was the view taken by the Divisional Bench of this Court in amending the appellate decree. The result is that the appeal fails and is dismissed with costs. Counsel's fee Rs. 25.