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Shib Kumar and ors. Vs. Lala Sheo Ghulam and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.932
AppellantShib Kumar and ors.
RespondentLala Sheo Ghulam and ors.
Cases ReferredVasudev Ramchandra v. Bhavan Jivraj
Excerpt:
costs - appeal--order appealable--appeal against portion of order as to costs maintainable--civil procedure code (act v of 1908), order xlii, rule 1(j). - - but in the particular matter upon which it was adjudicating, and in connection with which it passed the order now under appeal, it held that the objections taken by the judgment-debtors to the sale were well-founded and must prevail. they were made to bear their own costs because they had produced certain evidence which the court below treated as both unnecessary and unreliable;.....setting aside a tale. this may fairly be interpreted as meaning that, where an order has been passed setting aside a sale, any party to the proceeding dissatisfied with any portion of the order passed has the right of appeal. this seems to have been the view taken by the bombay and by the calcutta high courts, and we are prepared to agree. on the merits it seems to us that the order of the court below, saddling the appellants with the costs of the opposite party, proceeds upon no principle and is one which could have been challenged, even in a second appeal, as being erroneous in law. the court was dissatisfied with the manner in which the judgment debtors had conducted themselves throughout the whole execution proceedings; but in the particular matter upon which it was.....
Judgment:

1. This first appeal from order comes before us under the following circumstances. On objection taken by the judgment debtors a certain sale was set side. The Court, however, for reasons given, saw fit to order that the judgment-debtors should not merely bear their own costs of that objection, but should also pay the costs of the other side. The judgment-debtors have submitted to the order in so far as it directed them to bear their own costs of the proceeding. They have no quarrel with the order directing the sale to be set aside, which was indeed passed at their instance. They appeal against that part of the order which directed them to pay the costs of the other side. An objection is taken that no appeal lies. In Balkissen Duss v. Luchmeeput Singh 8 C. 91 : 4 Ind. Dec. (N.S.) 59 the principle was broadly laid down that, if an order is itself appealable, an appeal will lie from that part of the order which relates to costs. This decision has been followed in Moshingan v. Mozari Sajad 12 C. 271 : 6 Ind. Dec. (N.S.) 184 and the Bombay High Court has expressed the same opinion in the case of Vasudev Ramchandra v. Bhavan Jivraj 10 B. 241 : 8 Ind. Dec. (N.S.) 639. The words of Order XLIII, Clause 1 (j), give an appeal 'from' an order setting aside a tale. This may fairly be interpreted as meaning that, where an order has been passed setting aside a sale, any party to the proceeding dissatisfied with any portion of the order passed has the right of appeal. This seems to have been the view taken by the Bombay and by the Calcutta High Courts, and we are prepared to agree. On the merits it seems to us that the order of the Court below, saddling the appellants with the costs of the opposite party, proceeds upon no principle and is one which could have been challenged, even in a second appeal, as being erroneous in law. The Court was dissatisfied with the manner in which the judgment debtors had conducted themselves throughout the whole execution proceedings; but in the particular matter upon which it was adjudicating, and in connection with which it passed the order now under appeal, it held that the objections taken by the judgment-debtors to the sale were well-founded and must prevail. If so, the judgment-debtors were justified in objecting to that sale and no valid reason can be given for requiring them to pay the costs of the other side. They were made to bear their own costs because they had produced certain evidence which the Court below treated as both unnecessary and unreliable; but they have submitted to that portion of the order against them and it is not in question here. We think this appeal must prevail and we allow it accordingly, by setting aside so mush of the order under appeal as directed that the objectors should bear the costs of the opposite party. The appellants are entitled to their costs of this appeal, and we order accordingly.


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