1. This is a judgment-debtor's appeal arising out of certain execution proceedings. A preliminary decree for sale was passed on the 3rd of February 1920 against two judgment-debtors. Both these judgment-debtors appealed to the High Court. While their appeal in the High Court was pending a final decree was prepared by the Court below on the 3rd of September 1920. After this the High Court affirmed the preliminary decree passed by the Court below and dismissed the appeal on the 15th of December 1922. The decree further contained the following words;
It is further ordered that the appellants aforesaid do pay the respondents aforesaid the sum of Rs. 727 the amount of costs incurred by the latter in the Court.
2. The decree-holders have sought to execute their decree for costs against the judgment-debtors personally without adding them to the mortgage money in the first instance. The judgment-debtors objected to it, but their objection has been disallowed by the execution Court. The learned Subordinate Judge is of opinion that inasmuch as the High Court affirmed the decree of the Subordinate Judge it left it altogether untouched and that therefore, the first Court's final decree did not merge in the appellate decree and that the final decree of the Subordinate Judge and the appellate decree of the High Court were two separate decrees capable of being separately executed without reference to each other. He has further held that the decree of the High Court was a decree for costs against the judgment-debtors personally and he has distinguished a case relied upon by the appellants. There is an authoritative pronouncement by a Full Bench of this Court in the case of Gajadhar Singh v. Kishen Jiwan Lal AIR 1917 All 163 that in a suit for sale on a mortgage even when an appeal has been preferred from the preliminary decree, the decree which is to be made absolute is the decree of the final Court of appeal. The view of the Subordinate Judge, therefore, that the first Court's decree did not merge in the appellate Court's decree is not correct.
3. It has further been held by a Full Bench of this Court in the case of Maqbul Fatima v. Lalta Prasad (1898) 20 All 523 that an order directing the unsuccessful appellants to pay costs of the appeal is merely a formal compliance with the provisions of the Code and is not intended to be directed for the recovery of costs personally from the judgment-debtor. The same principle has been followed in the case of Damber Singh v. Kalyan Singh AIR 1913 All 366 and also the case reported in the footnote on page 114 which has been followed in the case of Sadiq Husain Khan v. Ummatul Fatima Begam AIR 1918 Oudh 445 and this seems to be in accordance with the prevailing practice of this Court. The case relied upon by the appellants in the Court below, Muhammad I ftikharullah v. Banke Lal AIR 1924 All 104, may be distinguished on the ground that the appellate Court in that case had extended the time for payment.
4. The only case in which it has been laid down that costs could be recovered from the person of the appellants is that of Amina Bibi v. Rama Shankar AIR 1919 All 297. That case, however, can on the facts be distinguished on the ground that only one of the mortgagors had appealed from the first Court's decree and some of the mortgagors who had transferred their interests pendente lite had not even been impleaded in the appeal. The learned Judges had to construe the particular decree which was before them and their interpretation of it was that the appellant had been made liable to pay the costs personally.
5. Under Order 34, Rule 10, it is provided 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 suit as have been properly incurred by him since the decree for foreclosure or sale or redemption up to the time of actual payment. That rule, therefore, clearly provides the addition of the costs incurred even subsequent to the preliminary decree till the time of final adjustment. This, however, would not exonerate the mortgagors from their liability to pay the amount personally at a subsequent stage. When the mortgage-decree has been executed and the mortgaged property has been sold and the sale proceeds are found to be insufficient to pay the amount due to the plaintiff then if the balance is legally recoverable from the defendants personally otherwise than out of the property sold, the Court has power to pass a decree for such an amount under 0. 34, Rule 6. The effect of Rule 10 is to make the mortgaged property liable for the amount of costs in the first instance.
6. In this view of the matter I am of opinion that the objection of the judgment-debtors was well founded. I accordingly allow this appeal and setting aside the order of the Court below direct that the amount of the costs should be included in the mortgage money in the first instance and realized by sale of the mortgaged property.