1. This was an originating summons filed by one trustee against his co-trustees for the determination of the following question:
Whether the defendants should not be ordered to execute a deed of appointment appointing Dinshaw D. Romer as a trustee of the premises mentioned in the deed of declaration, dated June 6, 1919, referred to in the plaint in place and stead of Cowasjee Maneckjee Rustomjee, deceased,
2. At the hearing of the summons the second defendant was absent, while Counsel appeared for the plaintiff, the first and third defendants respectively. The answer to the question was that the defendants were bound to execute a deed of appointment. The costs of plaintiff and third defendant as between Attorney and client were to come out of trust funds, and the first defendant was directed to bear his own costs.
3. From that judgment the first, defendant appealed. He made the plaintiff and the second and third defendants respondents. At the hearing of the appeal the second defendant was absent while separate Counsel appeared for the plaintiff and the third defendant. The appeal was dismissed with costs
4. No application was made to the Court at that time to ascertain whether separate sets of costs were allowed to the plaintiff respondent and the third defendant-respondent. The draft decree was drawn up. The first and the third respondents appeared by one set of attorneys, and in the draft it was directed that the appellant should pay the costs of the first and the third respondents of the appeal. The appellant objected and altered the draft, so that it contained a direction that the appellant should only pay one set of costs to the respondents.
5. In consequence of that dispute, the suit has been set down before us for speaking to the minutes of the decree. We have been told by Counsel for the respondents that it has been the practice on the Original Side of this Court to construe an order or decree in a suit where more than one party appears as defendant or respondent, directing payment of the defendants' or respondents, each by the plaintiff or appellant, as meaning that each defendant or respondent appearing is entitled to costs from the losing party. I and my learned brother are not aware of such a practice, and no authority has been cited before us in which such a practice has been confirmed by a decision of this Court. We think that when such parties appear separately then an application should be made at the time when judgment is delivered in their favour with costs for separate sets of costs. That is the invariable practice on the Appellate Side, and unless such an application is made an order like the one which has been made in this appeal must be taken as meaning that the losing party should only pay one set of costs to be divided amongst the successful parties. In any event, it is certain that if the respondents had applied for separate sets of costs, we would not have allowed them. There was no necessity whatever for separate appearances on behalf of the plaintiff and the third defendant. Therefore, the decree will be settled as altered by the appellant.
6. No order for costs. Order accordingly.