Fani Bhusan Roy Chowdhury vs Bama Sundari Debi

In this appeal which arises out of an application for execution of decree made by the Appellant, the only question that arises for consideration is whether the decree for costs which the Appellant seeks to enforce is capable of execution. The decree is a decree of the Appellate Court by which a preliminary decree for partition made by the first Court was set aside and the case was remanded for trial on the merits; and the order as to costs was in these terms, namely, that "costs will abide the result." The amount of the costs of the Appellate Court is specified in the decree, but the order being that costs will abide the result the decree necessarily left it undetermined as to which party was to pay those costs and which party was to receive them. The Courts below have held that this indefiniteness in the decree as to costs makes it incapable of execution.

The learned vakil for the Appellant contends that though the order was indefinite when first made, it has been rendered definite by the result of the remand; and as that result has been entirely" in the Appellant''s favour he is entitled to recover the costs in question.

We have come to the opinion, though not without some hesitation, that this contention of the Appellant is correct. The decree of the Appellate Court, from the nature of the order made as to costs, could not have been more definite than it is. The only question is whether it was absolutely necessary for the Appellant to have the matter rendered explicitly definite when the case was disposed of by the first Court after remand. That he might have asked that Court when it disposed of the case after remand to make some express order with reference to the costs of the Appellate Court is not disputed; but what the learned vakil for the Appellant in effect urges is that though that might have been done, yet it was not absolutely necessary for the Appellant to do that, and that he would be entitled to the relief he now asks for if be could show that the result of the remand was entirely in his favour, and that he is therefore entitled as a matter of course to the costs in question. If the Appellate Court in its order for costs had left it to the discretion of the first Court to apportion the costs in such manner as it thought proper, the Appellant could not have succeeded in his present contention, because he did not ask the first Court to exercise its discretion and to apportion the costs on the result of the remand. But the Appellate Court left no such discretion to the first Court. It cannot, therefore, be said that it was absolutely necessary for the Appellant to have the matter definitely stated in the decree of the first Court. But here the question arises whether the result of the remand has been entirely in favour of the Appellant as the Appellant contends, Upon this question the materials'' placed before the Court are not sufficient to enable it to arrive at any decision; and as it was the Appellant''s fault that full and proper materials were not placed before the Court, we think that though he is entitled to succeed upon his contention that the decree is not incapable of execution and may ask us to remand the case the remand must be in terms as to costs. We think it right that the Appellant should pay all the costs that have been thrown away, namely, the costs in the first Court and the costs in this appeal, the lower Appellate Court not having made any order for costs.'' We would add that the only materials which it would be allowable to the Appellant to place before the Court in order that it may come to a decision upon the question whether the result of the remand was entirely in his favour are the judgments and decrees made in the case.

The result is that the order of the lower Appellate Court will be set aside and the case sent back to that Court in order that it may dispose of the appeal after determining the question we have indicated upon the materials just referred to. The Appellant will have an opportunity of placing those materials before the lower Appellate Court; but it will be a condition precedent to this remand taking effect that the Appellant should pay to the Respondent his costs in this and the first Court. We assess the hearing fee in this Court at one gold mohur.