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Shyam Sunder and anr. Vs. Shanti Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 50 of 1956
Judge
Reported inAIR1961All563
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35
AppellantShyam Sunder and anr.
RespondentShanti Devi
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateAjit Ranjit Man Singh, ;J.K. Srivastava and ;K.N. Tripathi, Advs.
DispositionAppeal allowed
Excerpt:
civil - liability to pay costs - section 35 of code of civil procedure, 1908 - under section 35 courts authorized to determine all facets regarding payment of tax - express direction that costs to be paid by the next friend - sarbarakar not saddled to pay the cost - held, cost cannot be recovered from sarbarakar-appeal allowed. - - this case is, therefore, clearly distinguishable from the present one......was the decree-holder. in execution of her decree, she proceeded to attach certain properties. shyam sunder appellant no. 1 in this appeal filed certain objections to the attachment of the said property on behalf of sri thakurji, shyam sunder purported to file these objections as the manager or sarbarakar of sri thakurji. these objections were dismissed by the execution court with costs.these costs amounted to rs. 414/2/-. shanti devi then put the said decree for costs into execution, and prayed for its execution by means of arrest of shyam sunder, the sarbarakar of sri thakur ji. her case was that the objections were in fact, filed by shyam sunder who was the real person responsible for the same. the execution court, however, rejected the application of sumati shanti devi on the.....
Judgment:

N.U. Beg, J.

1. This second appeal arises out of execution proceedings. The respondent in this appeal, namely, Srimati Shanti Devi was the decree-holder. In execution of her decree, she proceeded to attach certain properties. Shyam Sunder appellant No. 1 in this appeal filed certain objections to the attachment of the said property on behalf of Sri Thakurji, Shyam Sunder purported to file these objections as the manager or sarbarakar of Sri Thakurji. These objections were dismissed by the execution court with costs.

These costs amounted to Rs. 414/2/-. Shanti Devi then put the said decree for costs into execution, and prayed for its execution by means of arrest of Shyam Sunder, the Sarbarakar of Sri Thakur Ji. Her case was that the objections were in fact, filed by Shyam Sunder who was the real person responsible for the same. The execution court, however, rejected the application of Sumati Shanti Devi on the ground that the application was not maintainable against Shyam Sunder, as the party saddled with costs was Thakurji and not Shyam Sunder.

Dissatisfied with the said order, Shanti Devi filed an appeal. The appeal was allowed by the learned District Judge Farrukhabad, who set aside the order of the execution court, and directed that execution should proceed as prayed against Shyam Sunder personally. This order is the subject-matter of the present appeal by Shyam Sunder.

2. Having heard the learned counsel for the appellant, I am of opinion that this appeal should be allowed. It is to be borne in mind that the objections to attachment in the present case were filed by Sri Thakurji. The objector in the execution case, therefore, was Sri Thakurji, and not Shyam Sunder. Shyam Sunder filed these objections merely as the Sarbarakar of Sri Thakurji, and, as the latter's representative or manager. The dismissal of the objection with costs must, therefore, be interpreted as meaning that the costs were to be paid by the party who was the objector, namely, Sri Thakurji.

The lower court, however, was of opinion that as the order did not expressly mention that the costs were to be paid by Sri Thakurji, hence Shyam Sunder who was really responsible for the objections must be held responsible for payment of costs. I am of opinion that it is an inverted approach to the matter. When a court passes an order in favour of a party, it is presumed that the order is passed in favour of that party against the party arrayed on the other side. In the present case, the opposite party was not Shyam Sunder but Sri Thakurji; hence it is Sri Thakurji and not Shyam Sunder against whom execution should proceed.

3. The lower court has also observed that under Section 35 C. P. O. a court has full power to determine by whom or out of what property and to what extent the costs in a case are to be paid, and to give all necessary directions in connection therewith. No doubt this is so. The result would be that under Section 35, C. P. C. it was open to the court to saddle the Sarbarakar viz. Shyam, Sunder with costs. The court's order, however, does not show that it did so.

In the absence of any express order by the court imposing the liability for costs on Shyam Sunder, I am of opinion that any realisation of the same from him would be unwarranted and illegal. The enforcement of the said order for costs against Shyam Sunder personally would be reading something in the order which is not contained in it. The lower court has relied on a decision of the Bombay High Court reported in Babu v. Alibhai Dawoodbhai, AIR 1935 Bom 112. This was a suit filed by a minor plaintiff on the original side of the Bombay High Court.

This suit was dismissed with a direction that costs were to be paid by the next friend without prejudice to his right to recover the same front the minor's estate. In this case, therefore, these was an express direction that costs were recover able from the next friend personally who could in his turn recover the same from the minor. No such direction is to be found in the present case. This case is, therefore, clearly distinguishable from the present one. The position appears to have been cleared up in a subsequent case of the same court reported in Vinayakrao Pandurangrao v. Sharanappa Ramanna, AIR 1944 Bom 100.

Learned counsel has also referred to a Bench decision of this court reported in Sibt Ahmad v. Amina Khatoon : AIR1929All18 in which it was observed that there was no authority in the C. P. C. to award costs personally against the guardian ad litem. It is not necessary for me in this case to go as far as that. It is enough for the purposes of this case to hold that where the party in the case is Sri Thakurji, and objections are filed by Sri Thakurji through the Sarbarakar, in the absence of any express order by the court imposing the liability for costs on the Sarbarakar personally it is the party in the case namely, Sri Thakurji that would be liable to pay the costs and not the Sarbarakar.

In this view of the matter, this appeal willhave to be allowed. I, accordingly, allow thisappeal set aside the order of the court below,and reject the execution application as being notmaintainable against the appellant Shyam Sunder. The appellant will be entitled to his costsfrom the respondent.


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