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Muhammad Iftikhar-ullah Vs. Banke Lal - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported inAIR1924All104; (1923)ILR45All630
AppellantMuhammad Iftikhar-ullah
RespondentBanke Lal
Excerpt:
.....preliminary decree--appeal dismissed with costs--decree regarding costs not executable until final decree is passed. - - their appeal was unsuccessful and was dismissed, excepting in so far that the time for the payment of the money was extended; it is open to a court of appeal to direct that such costs as it may award against the unsuccessful appellant may be recoverable from him personally, but if there is no such express direction, the costs are, as a matter of ordinary practice sanctioned by order xxxiv, rules 2, 4 and 10, of the code of civil procedure, added to the mortgage money and are, in the first instance, recoverable from the mortgaged property after the decree is made final. in that particular case, the costs in question were the costs of an unsuccessful appeal..........v. ram shankar (191.9) i.l.r. 41 all 473 but in that case the decree sought to be executed was. a final decree-in a mortgage suit, which provided for the extension of the time for payment by the mortgagor for another six months from the date thereof and went on to direct the appellant to pay the respondents a certain sum of money. a final decree stands, however, on a different footing from a preliminary decree for sale. a preliminary decree is supposed to direct the taking of accounts of what would be due on the mortgage, including the costs of the suit, in the manner provided by order xxxiv, rules 2, 4 and 10, of the code of civil procedure. a final decree is intended to give the result of the account, as it would stand on the date of that decree, showing the money due on the mortgage,.....
Judgment:

Walsh and Kanhaiya Lal, JJ.

1. This appeal arises out of an application made by the decree-holder respondent for the recovery of certain costs, awarded to him by an appellate decree of this Court, from the person of the judgment-debtors. It appears that the decree-holder obtained a preliminary decree for the sale of certain property against the present judgment-debtors and other persons, which provided that in the case of non-payment of the decretal money, including the costs awarded by the trial court, the mortgaged property was to be sold. From that decree some of the heirs of the original mortgagor appealed to this Court. Their appeal was unsuccessful and was dismissed, excepting in so far that the time for the payment of the money was extended; and the decree-holder respondent was awarded his costs as against them. The effect of the dismissal of the appeal with the modification mentioned above was that the decree of the trial court, as amended, merged in the decree of this Court, and until it was made final it could not be executed against the mortgaged property. The decree-holder sought in the present proceedings to recover the costs awarded to him by the decree of the appellate court, but Order XXXIV, Rule 10, of the Code of Civil Procedure provides that in finally adjusting the amount to be paid to a mortgagee in case of a foreclosure or sale or redemption, the court shall, unless the conduct of the mortgagee has been such as to disentitle him to costs, add to the mortgage money such costs of the suit as have been properly incurred by him since the decree for foreclosure or sale or redemption up to the time of actual payment. It is open to a court of appeal to direct that such costs as it may award against the unsuccessful appellant may be recoverable from him personally, but if there is no such express direction, the costs are, as a matter of ordinary practice sanctioned by Order XXXIV, Rules 2, 4 and 10, of the Code of Civil Procedure, added to the mortgage money and are, in the first instance, recoverable from the mortgaged property after the decree is made final. That view has been recognized in the cases of Dambar Singh v. Kalyan Singh (1917) I.L.R. 40 All., 109 and Mirza Sadiq Husain Khan v. Musammat Ummatul-fatima (1918) 48 Indian Cases 329. The court below has relied on the decision in the case of Amina Bibi v. Ram Shankar (191.9) I.L.R. 41 All 473 but in that case the decree sought to be executed was. a final decree-in a mortgage suit, which provided for the extension of the time for payment by the mortgagor for another six months from the date thereof and went on to direct the appellant to pay the respondents a certain sum of money. A final decree stands, however, on a different footing from a preliminary decree for sale. A preliminary decree is supposed to direct the taking of accounts of what would be due on the mortgage, including the costs of the suit, in the manner provided by Order XXXIV, Rules 2, 4 and 10, of the Code of Civil Procedure. A final decree is intended to give the result of the account, as it would stand on the date of that decree, showing the money due on the mortgage, including the costs recoverable from the mortgaged property, and if that final decree contains a separate direction for the payment of costs by a certain party to another, the situation becomes entirely different. In that particular case, the costs in question were the costs of an unsuccessful appeal brought in the High Court by one only of several mortgagors against the final decree. In the present case no final decree has yet been prepared. The preliminary decree merely directed the taking of accounts and the payment of a certain sum of money including costs within a certain period, with a proviso that if the said amount was not so paid, the mortgaged property shall be liable to be sold.. That decree merged in the appellate decree of this Court. The latter is the only decree capable of being made final; and the two decrees must be read together in order to determine the rights of the parties and the remedies at present available to them. We do not, at any moment; suggest that the right of the decree-holder to recover the costs from the person of the then unsuccessful appellant is altogether excluded. The remedy of the decree-holder at the present stage is to get a final decree prepared, showing the money due on the mortgage inclusive of the costs of the suit and the costs incurred subsequent to the preliminary decree for sale, and when such a decree has been obtained, he can execute the decree against the mortgaged property, and then pursue such remedy as may be available to him, after the mortgaged property has been sold, for the recovery of the rest of the money due to him on account of the decree. In that view of the matter this appeal must be allowed and the order of the court below set aside, the result being that the application of the decree-holder will stand dismissed with costs here and hitherto.


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