1. This execution appeal arises under the following circumstances: A preliminary decree for sale was passed on the 4th of March 1910. This decree was made final on the 30th of April 1915. In 1917 the decree-holder put in application for execution. After his decree had been partially satisfied the execution case was struck off by order dated the 14th of December 1920. The decree-holder appealed to the High Court and his appeal was allowed on the 27th of February 1923 and the case sent back to the Court below with directions to readmit the application for execution. The High Court awarded the decree-holder Rupees 166-8-0 as costs of the appeal. The decree-holder has put his decree for costs in execution against the judgment-debtor personally. The judgment-debtor filed objections to this execution pleading that this amount ought to be added to the mortgage-money and realized exclusively by sale of the mortgaged property and that the decree for costs should not be executed against him personally. This objection has been disallowed by the Court below; hence this execution appeal. The learned advocate for the appellant contends that under Order 34, Rule 10, Civil P.C., it was imperative on the Court below to add to the mortgage-money the costs incurred since the decree and before the actual payment, and that therefore the Court had no power to execute this decree against the judgment-debtor personally. I am unable to accept this contention. If we look to Rule 4, Order 34 it will be apparent that the preliminary decree which is to be framed is to direct that the amount realized should be applied in payment of what is declared due to the plaintiff together with subsequent interest and subsequent coats. Then Rule 5 says that if on or before the date fixed the amount declared due as aforesaid together with such subsequent costs as are mentioned in Rule 10 is not paid then under Rule 5(2) the Court shall pass a decree that the mortgaged property or a subsequent part thereof be sold. There is no provision in Rule 5 that if the final decree for sale has been passed costs incurred subsequent thereto should also be, added to the mortgage-money. Reading all these rules together the scheme of the Code seems to be that the mortgaged property is liable for the costs properly incurred even subsequent to the preliminary decree, but they do not necessarily show that all kinds of costs which are incurred after the final decree are to be added thereto. 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 costs 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 account. Such costs as are incurred in carrying out the directions of the decree would he costs incurred in the suit which would be liable to be added to the mortgage money.
2. On the other hand costs incurred in subsequent objections to execution proceedings or in appeals from orders passed in execution are costs which are incurred in a proceeding separately numbered and treated as quite distinct and independent from the suit itself. It would be difficult to hold that Rule 10 would cover costs awarded in such subsequent proceedings also. According to the practice that prevails to my knowledge the costs awarded in such subsequent proceedings or in appeal from such proceedings are separately taxed and are realized by separate execution. The final decree has been prepared once and for all; it cannot be tampered with by making additions to or subtractions therefrom. Of course at the time of the final adjustment when the Court has to see whether the decree has or has not been satisfied due credit has to be given under Rule 10 for costs that the mortgagee may have incurred in the suit itself. If this interpretation of the rules were not correct the result may be extremely disadvantageous to the mortgagee for whose benefit Rule 10 was obviously intended. 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 and cannot be realized against the judgment debtors personally, would merely create a further 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. I must accordingly hold that the costs allowed by the High Court in appeal from the order striking off the execution are costs which the decree-holder can realize separately by execution against the judgment-debtor personally and which he is not bound to add to the mortgage money.
3. While in the course of delivering this judgment, I noticed with surprise that at an earlier stage in the suit I had appeared as counsel for one of the parties but as the learned Counsels for the parties have stated that they have no objection to my deciding this case, I have completed the judgment.
4. The appeal is dismissed with costs including fees on the higher scale.