1. The petitioner brought a suit in O. S. No. 212 of 1944-45 for setting aside an order passed in an earlier miscellaneous case in the Court of the First Munsiff of Mysore who decreed it with costs. On appeal in R. A. No. 84 of 1946-47 by the defendant the Subordinate Judge set aside that decision and dismissed the plaintiff's suit with costs throughout. A second appeal was filed against that decision in S. A. No. 23 of 47-48 and was heard by Venkata Ramaiya and Puttaraj Urs JJ. They were of the opinion that the suit was to be disposed of afresh after passing orders on an application which had been made by the plaintiff for amendment of his plaint and after giving an opportunity to any other creditor to intervene in the suit. They therefore set aside the decrees of the Courts below and remanded the case to the trial Court for disposal. As regards costs they made a direction as follows 'the costs of this appeal will abide the result'. The suit ultimately ended in favour of the plaintiff and the Munsiff decreed it as prayed for with costs. That decision was confirmed in R. A. 21 of 49-50 by the Subordinate Judge who dismissed the appeal with costs and a second appeal thereon in S. A. 178/50-51 was dismissed without being admitted.
2. The plaintiff who found that the costs of the Second Appeal No. 23 of 47-43 had not been included in his favour in the decree of the Munsiff applied under Section 152, Civil P. C. for amendment of the same. That application was rejected bythe present Munsiff of Mysore who held that the Munsiff who tried and decided the suit was at liberty to award those costs or not to the plaintiff, and as he had not expressly directed in his judgment that the same should be included in the plaintiff's costs, the plaintiff could not claim that relief through an application for amendment. The plaintiff has come up ID revision.
3. For the petitioner, it is contended by Sri M. A. Gopalaswamy Iyengar, his learned Counsel, that the learned Munsiff who tried the suit and passed a decree had awarded costs to the plaintiff; those costs must be deemed to ineau and to include the costs incurred by the plaintiff in the second appeal which were directed by the High Court to abide the result. It was open to the learned Munsiff not to have awarded any costs at all to the plaintiff in which case the present, question would not have arisen but as he has not chosen to do so they must be taken to have been granted to him as a part and parcel of his costs.
4. It has been held in -- 'Godavarthi Peria v. Godavarthi Lakshmidevamma', AIR 1916 Mad 621 (1) (A) that the words 'abide the result' only connote that the order as to costs is to await tho passing of the final decision in the case and have not the effect of fettering the discretion of the trying Judge. The facts of that case were similar to the present case. There also the High Court had while remanding a civil miscellaneous appeal ordered 'that the costs shall abide the result'. On. the rehearing the trying Court refused to award costs to the appellant who had succeeded before him. In a revision petition against that order it was contended before the High Court that the trial Judge was bound to award those costs to the successful party and had no jurisdiction to decide otherwise. It was held by the High Court that construction would have been correct only if the words had been 'to abide and follow the event or follow the events' as in -- 'Templeton v. Laurie', 25 Bom 230 (237) (B) and that the words abide the result only meant that the order as to costs is to await the passing of the final decision in the case. They observed that those words broadly speaking were equivalent to the words 'costs in the cause'.
5. In -- 'Jiwabhai Fitam'oerdas v. Tej Sama', AIR 1924 Bora 393 (C), while remanding the case to the lower Court for fresh disposal the High Court had directed that the costs of the proceeding in revision should be costs in the cause. The successful plaintiff to whom costs of the suit were ultimately awarded sought to include these costs also in his execution petition. Tha same were disallowed by the executing Court on the ground apparently that his predecessor who had passed the decree had refused to allow this item. It was held by Maclcod C. J. and Shah J. that when an order had been made in tho interlocutory proceeding that the costs will be costs in tho cause and a decree was passed in favour of one side or the other for costs then those costs also must be taken as being included in the final order unless the Judge expressly excluded them. -- '25 Bom 230 (B)', merely lays down that the words 'will be costs in the cause' in that context did not-mean that the costs would inevitably follow the event but that those costs remained to be dealt with by the trying Court who had power to grantor refuse it to the successful party, a proposition which is not disputed in this case.
6. In -- 'American Trading Co. v. Bird & Co : AIR1926Bom596 an order had been passed in the earlier stage of a suit while dealing with two applications one for examining a witness oncommission and the other to examine another witness 'de bene esse' that the costs incidental to those applications should be 'costs in the cause'. The Judge who finally tried and disposed of the suit held that these costs should be borne not by the plaintiffs who had failed but by the defendants who he thought had raised some unreasonable pleas and in support of those pleas had examined the two witnesses in question. It was held by Macleod C. J. and Coyajee J. that the trial Judge had no power to do so thereby interfering with the effect of the earlier order whereby those costs became a part of the general costs of the action to which 'the successful defendants were held entitled. They observed that if he had, for any special reason, disallowed the defendants the whole costs of the action altogether they could have been properly deprived of this item also; but as matters stood those costs must be taken to be included in the general costs of the action and the defendants were entitled to recover them.
In -- 'Fani Bhusan v. Bama Sundari Debi', 4 Cal W N 343 (E) the appellate Court after setting aside the decree of the lower Court remanded the case and the order as to costs was 'costs will abide the result'. The amount of the costs were specified in the decree of the appellate Court but the decree necessarily left it undetermined as to which of the parties was to pay it and to whom. It was contended that it could not therefore be executed by the party who had ultimately succeeded after and as a result 01 the remand; it was held that if the result of the remand was entirely in favour of the successful party he was entitledas a matter of course to the costs in question, even if the decree of the lower Court after remand did not contain any such direction. This case strongly supports the petitioner.
7. In the present case also there is a memorandum of costs attached to the judgment of this Court in the second appeal and the petitioner who was the appellant is shown to have incurred Rs. 160-15-0 and the respondent Rs. 14-0-0. The incidence of those costs were to abide the result and according to the result the plaintiff would be entitled to recover them with the rest of the costs of the suit which have been awarded to him as a result of his success in the suit.
8. Any other construction would deprive the petitioner needlessly of the costs he is clearly entitled to recover from the respondent in the circumstances of this litigation. I see no reason why any such unreasonable effect should be given to an omission by a mere oversight to refer to this item in the judgment and decree of the trial Court and which is capable of being corrected under Section 152, Civil P. C. as an error arising from an accidental slip or omission which may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
9. In the result this petition is allowed. The decree of the learned Munsiff will be amended ae prayed for. The respondents will pay petitioner's costs (Advocate's fee Rs. 15/-).
10. Petition allowed.