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Maremanda Seshamma Vs. Jooluri Narasimha Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1553 of 1959
Judge
Reported inAIR1963AP167
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rule 15
AppellantMaremanda Seshamma
RespondentJooluri Narasimha Rao and ors.
Appellant AdvocateT. Veerabhadrayya, Adv.
Respondent AdvocateI. Vishnu Rao, Adv.
DispositionRevision allowed
Excerpt:
civil - unlawful order - order 26 rules 4, 6 and 15 of code of civil procedure, 1908 - expenses of commission does not include expenses of other party under order 26 rule 15 - court has no jurisdiction to travel outside order 26 rule 15 directing petitioner to pay expenses of other party - held, such order neither lawful nor correct. - - the petitioner failed to pay expenses accordingly. we are, therefore, clearly of the opinion (a) that the expression 'expenses of the commission' in order 26, rule 15 c. 554 of 1959 for failure to pay such expenseswas also not correct......pay expenses of the opposite party came up for decision by a division bench by reason of certain conflicting decisions which already existed. the bench considered the conflicting decisions, reported and unreported and finally decided as follows:'we are, therefore, clearly of the opinion (a) that the expression 'expenses of the commission' in order 26, rule 15 c.p.c., does not include expenses of the opposite party and (b) thai the court has no inherent power to travel outside order 26, rule 15, c.p.c. and impose conditions not warranted by that or any other specific statutory provisions in that regard. to pass an order in the terms as the court below has done would really be tantamount to passing an interim decree for costs which cannot be sustained under any provision of the.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. This is a petition to revise the order of the learned District Judge, Guntur In I.A. No. 554 of 1959 in A.S. No. 247 of 1953 on his file.

2. The relevant facts are briefly as follows:-The appellant in A. S. No. 247 of 1953 filed I.A. No. 554 of 1959 under Order 26, Rules 4 and 6 C.P.C., praying to issue a commission for examination of a Handwriting Expert at Delhi. The learned District Judge passed an order directing the petitioner to pay the expenses of the other party. The petitioner failed to pay expenses accordingly. In consequence, the learned District Judge passed the order rejecting the petition. Hence this revision has been filed.

3. The learned advocate for the petitioner relies on the decision of a Division Bench of the Madras High Court in Tata Iron and Steel Co. Ltd. v. Ibrahim Rowther, : AIR1955Mad654 . Therein, the question as to whether the Court can order a party under Order 26, Rule 15 C.P.C., to pay expenses of the opposite party came up for decision by a Division Bench by reason of certain conflicting decisions which already existed. The Bench considered the conflicting decisions, reported and unreported and finally decided as follows:

'We are, therefore, clearly of the opinion (a) that the expression 'expenses of the commission' in Order 26, Rule 15 C.P.C., does not include expenses of the opposite party and (b) thai the Court has no inherent power to travel outside Order 26, Rule 15, C.P.C. and impose conditions not warranted by that or any other specific statutory provisions in that regard. To pass an order in the terms as the Court below has done would really be tantamount to passing an interim decree for costs which cannot be sustained under any provision of the Code.'

That decision of the Bench was passed on 21-2-1955that is, after the formation of the Andhra High Court.Consequently, that decision is not binding on this Court.But, it is very valuable in two ways: (1) Its persuasivevalue and (2) A Bench of the Madras High Court sat anddecided as to which view out of the conflicting viewsexpressed in the various earlier decisions was correct.The original conflicting decisions were passed before theAndhra High Court was formed. So, the decision of the Benchof the Madras High Court gives a valuable indicatnn as towhich earlier decisions were chosen by them to be confirmedand continued in force out of the conflicting decisions. Thelearned Judges accepted the decision of Govinda Menon J.in Saboora Bivi Ammal v. Julaika Bivi Ammal, : AIR1950Mad144 , and the unreporteddecision of Balakrishna Ayyar, J. in C.R.P. No. 303 of1954 In preference to the decision of Mack J. in AbdurRahiman v. Muhammad Kasam, (1948) 2 Mad U 652 : (AIR1949 Mad 490). I prefer to follow the decision ofGovinda Menon J. in (1949) 2 Mad LJ 524 : (AIR 1951Mad 144), which was approved of by the Division Benchin : AIR1955Mad654 ., in ,preference to the decision of Mack, J. in (1943) 2 MadLJ 652 : (AIR 1949 Mad 490), and hold that the Courtbelow had no jurisdiction under Order XXVI Rule 15 C.P.C.,to direct the petitioner to pay the expenses of the otherparty. In effect, I find that the order of the lower Courtdirecting the petitioner to pay the expenses of the otherparty was not lawful or correct and that the rejection ofI.A. No. 554 of 1959 for failure to pay such expenseswas also not correct. I accordingly set aside the orderof the lower Court, allow the revision petition and allowI. A. No. 554 of 1959 with costs of this Court.


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