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Maqbul Fatima Vs. Lalta Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All523
AppellantMaqbul Fatima
RespondentLalta Prasad and anr.
Excerpt:
.....no. iv of 1882 (transfer of property act), section 88--civil procedure code, sections 219, 206--costs--decree apparently awarding costs twice. - - under the terms of that section, read with section 86, the decree should order, that an account be taken of what would be due to the mortgagee for principal and interest on the mortgage and for his costs of suit, if any, awarded to him, on the date to be fixed in the decree, and in the event of failure of payment of such amount of principal, interest and costs, that the mortgaged property should be sold. ' it is contended that the second direction in the decree to which we have referred is independent of the order contained in the first portion of the decree as to the inclusion of costs in the amount on failure to pay which the mortgaged..........of the code of civil procedure. it was never intended to be a direction for the recovery of costs personally from the debtor. in this view we are unable to agree with the observations contained in the judgment of this court in chiranji v. moti ram weekly notes 1898, p. 33. even if there were any ambiguity in the decree, it would be the duty of the court to construe the decree by the light of the judgment. the judgment in this case does not in the slightest degree indicate that the court intended to award costs against the defendant personally. the claim in the plaint was only for a decree for the sale of the mortgaged property, and the judgment directed that a decree should be prepared according to section 88 of the transfer of property act. in our opinion the judgment, so far.....
Judgment:

Banerji, J.

1. This appeal arises out of an application for the execution of a decree presented in the Court of the Subordinate Judge of Bareilly by the respondents decree-holders. They brought a suit for sale on a mortgage, and a decree was made in their favour under Section 88 of the Transfer of Property Act on the 27th of August 1894. An appeal was preferred from that decree to this Court, which was dismissed on the 22nd of April 1897. The decree-holders caused the mortgaged property to be sold by auction, and the proceeds of the sale being insufficient for the realization of the whole of the decretal amount, they subsequently applied for a decree under Section 90 of the, abovementioned Act. That application was dismissed. Their present application, which has given rise to this appeal, was one for the realization of the costs awarded to them by the decree of the Court of First Instance and of the appellate Court from the person of the judgment-debtor. As regards the costs of the appellate Court, there is no controversy in this appeal. As for the costs, of the Court of First Instance, it is contended on behalf of the judgment-debtor appellant that, under the terms of the decree passed in favour of the respondents they are not entitled to realize the costs of that Court otherwise than out of the mortgaged property. The Court below has over-ruled that objection, and it has been repeated in the appeal before us. No doubt a Court executing a decree is bound to give effect to the decree as it finds it. We have therefore to see whether in this case the decree awards to the decree-holders the costs of the suit against the defendant personally. The decree, as we have said above, is one under Section 88 of the Transfer of Property Act. Under the terms of that section, read with Section 86, the decree should order, that an account be taken of what would be due to the mortgagee for principal and interest on the mortgage and for his costs of suit, if any, awarded to him, on the date to be fixed in the decree, and in the event of failure of payment of such amount of principal, interest and costs, that the mortgaged property should be sold. A decree drawn strictly in accordance with the provisions of Section 88 cannot direct the costs of the suit to be recovered otherwise than out of the mortgaged property. The first portion of the decree in this case was in strict compliance with the requirements of Section 88 of the Transfer of Property Act. It declared that on the 27th of February 1895, Rs. 11,860-8 was to be payable to the plaintiffs, viz., Rs. 10,990 on account of principal and interest, and Rs. 876-8 on account of costs. The decree, however, contains a further direction in the following terms:--'It is further ordered that the defendant aforesaid do pay to the plaintiffs aforesaid the sum of Rs. 876-8, the amount of costs incurred by them in this Court.' It is contended that the second direction in the decree to which we have referred is independent of the order contained in the first portion of the decree as to the inclusion of costs in the amount on failure to pay which the mortgaged property could be sold, and it is urged that under this last clause the mortgagees plaintiffs are entitled to recover the costs over again from the defendants personally. We are unable to accede to this contention. We do not think that we should be justified in construing this decree in a manner which would make it an inequitable decree, which the decree in this case must be if, as is contended, it directs the same amount of costs to be paid twice over. In our opinion there is no ambiguity in the decree, and the second provision in it as to payment of costs is only a repetition of what is already contained in the first portion of the decree about the realization of costs out of the mortgaged property. Section 219 of the Code of Civil Procedure provides that the judgment shall direct by whom the costs of each party are to be paid, and by Section 206 it is directed that the decree shall state the amount of costs incurred in the suit, and by what parties and in what proportions such costs are to be paid. In our opinion the clause in the decree relied on by the decree-holders is only a formal compliance with the provisions of the Code of Civil Procedure. It was never intended to be a direction for the recovery of costs personally from the debtor. In this view we are unable to agree with the observations contained in the judgment of this Court in Chiranji v. Moti Ram Weekly Notes 1898, p. 33. Even if there were any ambiguity in the decree, it would be the duty of the Court to construe the decree by the light of the judgment. The judgment in this case does not in the slightest degree indicate that the Court intended to award costs against the defendant personally. The claim in the plaint was only for a decree for the sale of the mortgaged property, and the judgment directed that a decree should be prepared according to Section 88 of the Transfer of Property Act. In our opinion the judgment, so far from indicating, negatives an intention to make the defendant personally liable for the amount of the costs. We may observe that the decree of the appellate Court does not in any way affect the question before us, as it provides that the costs of the Court of First instance should be paid in the manner awarded in the decretal order of the said Court. We are in full accord with the opinion expressed by our brother Burkitt in his judgment in First Appeal No. 54 of 1894, decided on the 10th of August 1894, which dealt with a decree couched in similar terms. For the above reasons we are of opinion that the decree-holders are not entitled to realize the costs awarded by the decree of the Court of First Instance from the judgment-debtor personally, and we hold that this appeal must prevail.

Burkitt, J.

2. This case was referred to a Full Bench at my request, because, being one of the Judges responsible for the judgment in the case of Chiranji v. Moti Ram Weekly Notes, 1898, p. 33, I felt dissatisfied as to the correctness of the rule therein laid down. I now desire to say that I fully concur in the judgment which has just been delivered. On consideration I am of opinion that in that case we were wrong in holding that the Lower Appellate Court took a portion of the main decree of the Court of First Instance out of its proper position, and in a way constituted it a subsidiary decree for costs capable of execution against the persons of the mortgagors. I think we were wrong on that point, and that all that was intended to be done was to fill up as a matter of routine certain columns in the printed form of decree, and not in any way to modify the meaning or effect of the actual decree.

3. The order of the Court is, that this appeal be allowed, and that the order of the Court below be varied to this extent that the application of the decree-holders for the recovery of the costs of the Court of First Instance is dismissed. The appellant will get her costs of this appeal.


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