Jagdish Prasad Narayan Singh vs Mathura Prasad Singh and others

Dhavle, J.—The petitioner was defendant 2 in a mortgage suit which was dismissed with costs "recoverable by defendants 1 and 2 only," to quote the material part of the judgment. The decree that was drawn up gave each of these two defendants a separate pleader''s fee of Rs. 254 and defendant 1 realized the fee that was allowed to him in due course. The petitioner then applied for execution in respect of his costs including his separate pleader''s fee, and it was at this-stage that the opposite party put in a petition for amendment of the decree on the ground that it was not in accordance with the judgement in respect of the costs of defendants 1 and 2. This application was allowed inspite of the opposition of the petitioner, and the decree amended so as to divide one pleader''s fee of Rs. 254 between the two defendants that were entitled to recover it. It is against this order of amendment that the petitioner has applied in this civil revision.

Some of the argument before me on behalf of the petitioner has dealt with the merits of the case so far as the title of the two defendants to separate costs is concerned. But the question, it seems to me, is not what ought to have been given by the judgment, but what in fact was given by it. As it happens the learned Subordinate Judge who dealt with the petition for amendment was the same officer as had pronounced the judgment and signed the decree. But he too seems, in the order under revision, to have dealt more with the question of what ought to have been than with the question of what was. The judgment did not specifically award separate costs to the two defendants, and I am not aware of any instance, nor have I been referred to any, in which such a judgment has been taken to mean the award of separate costs to two defendants. The usual practice, to which I am aware of no exception, is to draw up decrees giving separate costs only in those cases where the judgments specifically award such separate costs. Looked at from this point of view, the petitioner has no case.

The learned advocate for the petitioner has laid stress on the fact that the petitioner actually contested the suit by a pleader of his own in addition to the separate contest offered by defendant 1; and he has also urged the defence of the two defendants was not common, but ran on such different lines as fraud in the case of the first defendant and the absence of legal necessity and the like in the case of the petitioner. These however are not circumstances now discovered for the first time. They must have been present in the mind of the learned Subordinate Judge who pronounced judgment, and it seems to me that his failure in those circumstances to award costs separately is pretty conclusive on the point I am called upon to deal with. As I have already indicated, the the learned Subordinate Judge''s examination of the merits has led him to the same conclusion, namely, that this was a case where separate costs were not awarded to the two defendants and ought not to have been awarded either. The application, therefore fails and must be dismissed with costs. Hearing fee one gold mohur.