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Uttam Kunwar Vs. Krishna Pal Singh - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 155 of 1954
Judge
Reported inAIR1960All659
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 34, Rule 10; Transfer of Property Act - Sections 72
AppellantUttam Kunwar
RespondentKrishna Pal Singh
Appellant AdvocateS.B.L. Gour, Adv.
Respondent AdvocateN.P. Asthana and ;K.B. Asthana, Advs.
DispositionAppeal dismissed
Excerpt:
civil - execution of maintenance decree - order 34 rule 10 of code of civil procedure,1908 - costs awarded for defending objection by judgment debtor - reimbursed by objector personally and from charged property. - - these costs were incurred in defending the safe carried out under the directions of the decreeand, as we are unable to exclude entirely from the suit the execution proceedings arising from that suit, we must hold that these are costs properly incurred in the suit in carrying out the directions contained in the decree. 11. in view of the above, we are of opinion that the order under appeal is perfectly correct......furnish accounts. such costs as are incurred in carrying out the directions of the decree wouldbe costs incurred in the suit which would be liable to be added to the mortgage money.'sulaiman j. also took into consideration the extremely disadvantageous result to the mortgagee in case the costs incurred in subsequent objections to execution proceedings or in appeals from orders passed in execution are held to be covered by rule 10, and observed:'in many suits or mortgages the personal remedy may be barred. costs incurred by the mortgagee in meeting objections in the execution department or resisting appeals to higher tribunals, if they are only to be added to the mortgage money arid cannot be realised against the judgment-debtors personally, would merely create a furtner charge on the.....
Judgment:

Dayal, J.

1. This case has been referred to the Full Bench on account of the different views expressed in Division Bench cases reported in Het Ram v. Raja Dutt Prasad Singh : AIR1926All722 and in Kashit Husain v. Sashidhar Singh, AIR 1930 Oudh 328.

2. Krishnapal Singh respondent sought execution of the decree in favour of Smt. Man Kunwar, his grandmother, for maintenance which had been declared a charge on the family zamindari property of Daljit Singh, husband of Srimati Uttam Kunwar appellant. Two objections under Section 47 C. P.C. were filed by the judgment-debtor. They were dismissed with costs by the Civil Judge and appeals against those orders were dismissed with costs by the High Court. Krishnapal Singh thereafter applied for the recovery of the costs awarded to him in these proceedings on the objections filed under Section 47 C.P.C, by executing the decree for costs by attachment and sale of the personal property of Srimati Uttam Kunwar. She objected to the execution proceedings on the ground that those costs could be realised in the first instance only from the property charged with the maintenance allowance and not from her personal property in view of Rule 10, Order 34, C. P. C. The objection was dismissed by the learned Civil Judge who relied on the case of : AIR1926All722 .

3. Rule 10 prior to its amendment by Sec.6 of the Transfer of Property (Amendment) Supplementary Act XXI of 1929 was;''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 suit as have been properly incurred by him since the decree for foreclosure or sale or redemption up to the time of actual payment.' This rule was considered in Het Ram v. Dat Prasad : AIR1926All68 , : AIR1926All722 and AIR 1930 Oudh 328.

4. In : AIR1926All68 Sulaiman J. observed at page 69:

'Rule 10 contemplates that when the time for final adjustment arrives the Court is to add to the mortgage money such costs which have been properly incurred since the decree and till the time of actual payment, but in my opinion the casts mentioned in Rule 10 are costs which are properly incurred in the suit in carrying out the directions contained in the decree; for instance, a mortgagee may be ordered to deliver title-deed of the property or to furnish accounts. Such costs as are incurred in carrying out the directions of the decree wouldbe costs incurred in the suit which would be liable to be added to the mortgage money.'

Sulaiman J. also took into consideration the extremely disadvantageous result to the mortgagee in case the costs incurred in subsequent objections to execution proceedings or in appeals from orders passed in execution are held to be covered by Rule 10, and observed:

'In many suits or mortgages the personal remedy may be barred. Costs incurred by the mortgagee in meeting objections in the execution department or resisting appeals to higher tribunals, if they are only to be added to the mortgage money arid cannot be realised against the judgment-debtors personally, would merely create a furtner charge on the mortgaged property which may not be sufficient to meet even the original liability. Furthermore the mortgagors would be immune from all personal liability to pay costs of futile and frivolous objections which they may choose to raise. This in my opinion could not have been contemplated.'

5. In : AIR1926All722 , which was an appeal from the judgment in : AIR1926All68 , it was held that Rule 10, Order 84 had nothing to do with the costs awarded in execution proceedings. The reason for this view was thus expressed.

'Order 34 does not deal with the execution of a decree; and the C.P.C., in which Order 34 finds a place has provided distinct rules for execution of decrees.'

We need not consider the question whether costs of the execution proceedings are costs contemplated by Rule 10 as such costs are not in dispute in the present case.

6. In AIR 1930 Oudh 328 the learned Judges considered the observations of Sulaiman J, in : AIR1926All68 and expressed the opinion that Rule 6, Or. 34, was designed to prevent the mortgagee suffering the hardship referred to by the learned Judge and that the costs incurred by the decree-holder in connection with the objection of the judgment-debtor in execution proceedings fell within the definition of costs given by Sulaiman J. in that case. They observed:

'These costs were incurred in defending the safe carried out under the directions of the decreeand, as we are unable to exclude entirely from the suit the execution proceedings arising from that suit, we must hold that these are costs properly incurred in the suit in carrying out the directions contained in the decree.'

7. With respect, we consider that these views do not meet fully the consideration which led Sulaiman J. to hold that these costs are not 'costs of the suit', and are not covered by Rule 10, Or. 34, C.P.C. We are of opinion that costs of proceedings on objection by judgment-debtor to execution are not costs of the suit.

8. It is submitted for the appellant that the costs decreed in favour of the respondent in proceedings on the objection of the appellant are covered by the expression ''costs, charges and expenses as have been properly incurred by him (the mortgagee) since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment' and should therefore be added to the amount due -to the decree-holder and charged on the property and ought to be realised from that property in the first instance and not personally from her.

9. Rule 10 of Or. 34 C.P.C. is:

'In finally adjusting the amount to be paid to a mortgagee in case of foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage money such costs of the suit and other costs, charged and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment.'

The proceedings On the objections by the judgment-debtor are proceedings thrust on the decree-holder. He had to incur expenses to meet the objections and according to the general principles of law deserves to be re-imbursed for those expenses which are awarded to him by the Court from the objector personally. Such expenses, in our opinion, do not come within the purview of Rule 10 of Order 34 C.P.C. They are not 'costs of the suit'.

10. The expression ''other costs, charges and expenses as have been properly incurred by him (the mortgagee) since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment' refers, in our opinion, to such costs, charges and expenses which the mortgagee can incur for the purposes mentioned in Section 72 of the Transfer of Property Act and for purposes analogous to them. Such expenses can be incurred up to the time of actual payment by the mortgagor and cannot always be included in the amounts found due to the mortgagee under the preliminary decree Or even under the final decree and so it provision is made for their being added to the mortgage money.

11. In view of the above, we are of opinion that the order under appeal is perfectly correct. We accordingly dismiss this appeal with costs.


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