P.V. Dixit, J.
1. In a suit instituted by the plaintiff non-applicant Madanlal against Rambux for the recovery of the price of goods alleged to have been sold by the plaintiff, the learned Civil Judge, First Class, Neemuch, while granting the prayer of the defendant-applicant that his own statement be recorded on commission at Hyderabad, where he resided, directed the defendant to pay first to the plaintiff the expenses that he might incur in going to Hyderabad for cross-examining him. In this revision petition, the grievance of the defendant is that the Court had no power to direct the defendant to deposit the expenses of the plaintiff as a condition of the issue of commission.
2. The question that is raised in this petition is whether the words 'expenses of commission which occur in Order 26, Rule 15, C. P. C. include the deposit of expenses of other party. In Namdeo v. Union of India, Civil Revision No. 385/53, 1954 Nag LJ (SN) No. 285 (A), Choudhuri, J. has, following Abdurahiman v. Muhammad Kasam, AIR 1949 Mad 490 (B) and Ghanshyam Das v. Krishturi Bala Debi, AIR 1936 Pat 33 (C), held that the words 'expenses of commission' include deposit of expenses of other party and thatthe Court has power to make an order directing a party to deposit the expenses the other party may incur while granting the prayer for the issue of a commission.
He also held that the Court could pass such an order under its inherent powers. I am not disposed to agree with this view. There is a distinction between 'expenses of the commission' and 'costs of the commission'. Whereas in Section 133(3), C. P. C- the expression 'costs of the commission' is used, Order 26, Rule 15, C. P. C. uses the expression 'expenses of the commission'. 'Costs' means expenses incurred by a party in any legal proceeding and those allowed by law or by the Court against the losing party.
The words 'expenses of the commission' de-note only the fees paid to the commissioner and other expenses directly incidental to the issue and execution of a commission and do not include costs of opponent's pleader or expenses which the opponent himself may have to incur to go to the place where the commission is to examine a witness.
The decision of the Madras High Court in AIR 1949 Mad 490 (B), has been recently overruled by the Madras High Court in Tata Iron and Steel Co. Ltd. v. Kadar Ibrahim Rowther, (S) AIR 1955 Mad 654 (D), and it has been held that the expression 'expenses of the commission' in Order 26, Rule 15, C. P. C. does not include expenses of the opposite party and the Court has no inherent power to travel outside Order 26, Rule 15 and impose conditions not warranted by that or any other specific statutory provisions in that regard.
A similar view has been taken in Kanji Karsondas v. Nathubhai Khimji, AIR 1953 Bom 390 (E); Asanand v. C. A. Ayyathurai, AIR 1956 Trav-Co 260 (F), and the Union of India v. Messrs. Natabarlal Jayashankar, AIR 1956 Orissa 65 (G). It is, however, not necessary for me to refer this case to a Division Bench for considering the correctness of the decision in 1954 NLJ SN 285 (A), or to express my own concluded opinion on the point.
The reason is that Mr. Agarwal, learned counsel appearing for the plaintiff-opponent, has stated before me that in order to expedite the hearing and conclusion, of the suit the plaintiff is not now insisting on receiving at this stage the amount of expanses for going to Hyderabad where the commission is to sit for the examination of the defendant. Both the defendant and the plaintiff agree that the, direction given by the lower Court with regard to the deposit of plaintiff's expenses should be set aside.
I accordingly accept this revision petition and modify the order dated 7th February, 1956 of the Civil Judge, First Class, Neemuch by deleting the direction with regard to the deposit of the plain-tiff's expenses in connection with the commission. It is needless to add that any expenses that the plaintiff might incur in connection with the commission would form part of the costs of the litigation and would be recoverable in the event of his success in the suit. Parties shall bear their own costs of this petition.