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A.V. Govindaswamy Chetty and ors. Vs. Narayanaswamy Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1946)2MLJ365
AppellantA.V. Govindaswamy Chetty and ors.
RespondentNarayanaswamy Naidu and ors.
Cases ReferredHambleton v. Brown
Excerpt:
.....awarded to him by clause 5 of the decree taxed by the taxing officer, but he had failed to get the taxed costs entered in the margin of the decree. the view taken by the learned judge was that the entry in the second paragraph of the judgment of the exact amount of the taxed costs can only be regarded as a piece of evidence to show what the costs as taxed amounted to, in other words, that it would be open to the plaintiff who has obtained a decree for costs to prove the actual amount of the costs that he is entitled to by other evidence as well and not necessarily by production of the copy of the judgment in which the entry has been made of the total amount of costs. 5. the question for consideration is whether the view expressed by lord atkin can be made applicable to a case like the..........who has had the costs awarded to him taxed by the proper officer, but has failed to have the taxed costs entered in the margin of the decree as required by the rules of the original side of this court.2. to appreciate the question that arises for determination, it is necessary to set forth the facts briefly. the petitioner in this execution application is the decree-holder in small cause suit no. 3820 of 1942 on the file of the presidency court of small causes, madras. he obtained a decree for rs. 378 odd and costs on 25th november, 1942. the judgment-debtor in that suit happened to be the first plaintiff in civil suit no. 37 of 1937 on the file of this court. in clause 5 of the decree of this court in that suit there was a direction regarding costs which was wox'ded as.....
Judgment:

Kunhi Raman, J.

1. This is a reference by the learned Master and it raises an interesting question regarding the position of a decree-holder who has had the costs awarded to him taxed by the proper officer, but has failed to have the taxed costs entered in the margin of the decree as required by the rules of the Original Side of this Court.

2. To appreciate the question that arises for determination, it is necessary to set forth the facts briefly. The petitioner in this Execution Application is the decree-holder in Small Cause Suit No. 3820 of 1942 on the file of the Presidency Court of Small Causes, Madras. He obtained a decree for Rs. 378 odd and costs on 25th November, 1942. The judgment-debtor in that suit happened to be the first plaintiff in Civil Suit No. 37 of 1937 on the file of this Court. In Clause 5 of the decree of this Court in that suit there was a direction regarding costs which was wox'ded as follows:

That defendants 1 to 4 do from and out of the said funds in their hands mentioned in Clause 4 supra pay to the present next friend of plaintiff 2 the costs of the said plaintiff 2 of the suit when taxed and noted in the margin hereof with interest thereon.

The next friend of the second plaintiff referred to here was the first plaintiff who was granted a decree for costs. All the four defendants died after the suit. Defendants 1 and 2 were the trustees of a temple in Coonoor. The present trustee who succeeded the first defendant has been brought on record and he is the respondent in this application. He is represented by Mr. T. A. Ramaswami Reddi who opposes the application.

3. The petitioner who is the decree-holder in the suit in the Court of Small Causes, attached the costs awarded to his judgment-debtor who, as already stated, was the first plaintiff in Civil Suit No. 37 of 1937 and it was in prosecution of that proceeding that the present execution application was filed in this Court. When he sought to enforce execution, it was discovered that the first plaintiff in Civil Suit No. 37 of 1937 had, after the decree in that suit, got the costs awarded to him by Clause 5 of the decree taxed by the Taxing Officer, but he had failed to get the taxed costs entered in the margin of the decree. When this was discovered, the present petitioner filed an application for excusing the delay in having this entry made, the time for doing which under Order XVII, Rule 7 of the Original Side Rules is three months. The application was very belated, because it was presented nearly three years after the date of the decree. The Master refused to excuse the delay and dismissed the application. That order has now become final, because no appeal has been preferred on behalf of the petitioner from the decision of the Master.

4. It is now contended on behalf of the petitioner that, under the decree in Civil Suit No. 37 of 1937, the amount of the costs awarded to the first plaintiff became ascertained when they were taxed. Therefore it is argued that since taxation of costs took place long prior to the attachment effected at the instance of the present petitioner, he, must be permitted to prosecute his execution application. It is admitted that the taxed costs have not been entered in the margin of the decree. This, according to the petitioner's learned Counsel, is an Omission that cannot be fatal to his execution petition. His argument is that it is the decree that awarded the costs. On the date of the decree the costs were not ascertained. When costs were taxed, they became ascertained and then they became capable of attachment. According to the learned Counsel, the rule contained in Order XVII, Rule 7, requiring insertion of the amount of costs in the margin of the decree prescribes an administrative act to be done by the officers of this Court. He argues that it is not a rule which confers any right. The right, according to him, was conferred by the judgment and the decree and, if there has been an omission to get the proper officer of this Court to do the administrative act of entering the amount of taxed costs in the margin of the decree, such omission would not deprive him of his remedy to claim the costs. Entry of the taxed costs in the margin of the decree, according to the petitioner's learned Counsel, furrishes proof or evidence of the amount awarded as costs by the decree. It is not the only proof or the only evidence for establishing the fact. He therefore contends that he may prove the right by other equally effective evidence, viz., by producing copies of the judgment and decree and by producing the allocatur given after taxation. In support of this contention, reliance is placed upon the judgment of Atkin, J., as he then was, which is reported as Hambleton v. Brown (1917) 2 K.B. 93. It must be stated before referring to the observation of the learned Judge that, according to the provisions of Order XLI of the Rules of the Supreme Court in England, every judgment has to be entered by the proper officer of the Court in the book kept for the purpose and the entry, unless the Court or judge shall otherwise direct, shall be dated as of the day on which the judgment was pronounced. The forms of the judgment are given in Appendix F to the Rules of the Supreme Court (page 1700 of the Annual Practice for 1943). To take as example Form No. 1 in the Appendix, the entry contains the clause :

It is this day adjudged that the plaintiff recover against the said defendant and

costs (or costs to be taxed).

That is followed by a separate paragraph:

The above costs have been taxed and allowed at as appears by a Taxing Officer's certificate dated day of 19.

There will be necessity to fill the blanks in the second paragraph only if the amount of the costs is not fixed in the judgment but is directed to be taxed by the proper officer. The question that arose in the case relied upon by the learned Counsel was whether omission to fill in the blanks in the second paragraph read above will in any way affect the right of the decree-holder to assign the total amount of the decree, including costs. The view taken by the learned Judge was that the entry in the second paragraph of the judgment of the exact amount of the taxed costs can only be regarded as a piece of evidence to show what the costs as taxed amounted to, in other words, that it would be open to the plaintiff who has obtained a decree for costs to prove the actual amount of the costs that he is entitled to by other evidence as well and not necessarily by production of the copy of the judgment in which the entry has been made of the total amount of costs. In the course of the judgment, the learned Judge says as follows:

The obligation to pay arose entirely from the judgment, and until that was effective there was only an expectancy of future property. It appears to me that the true view is that in a judgment for costs there is an actual judgment giving rights to the successful party as soon as pronounced. It is adjudged that the party recover costs to be taxed. The amount to be recovered has to be ascertained in a prescribed manner by taxation and, when the taxing Master has ascertained the amount and so certified, nothing further remains to be done but the ministerial act of completing the record.

The reference to the ministerial act is obviously to the filling in of the blanks in the second paragraph of the form of the judgment already referred to.

5. The question for consideration is whether the view expressed by Lord Atkin can be made applicable to a case like the present. It seems to me that the circumstances are entirely different in the case of a decree drawn up on the Original Side of this Court. The rule regarding the wording of the decree--and it must be remembered that it is the decree and not the judgment that is capable of execution--is Rule 7 in Order XVII of the Original Side Rules. The whole of it may be read:

If costs (other than fixed costs) are awarded, and unless otherwise ordered by the Court, the award of the costs of the suit or order, as the case may be, shall be inserted in the decree or order, followed by the words ' when taxed and noted in the margin hereof;' and the Registrar shall, upon production of the allocatur of the Taxing Officer, insert, the amount of costs accordingly (which shall bear interest at the rate of 6 per centum per annum from the date of taxation until payment). Provided always that no costs shall be noted after three months from the date of the taxation of the decree or order without the order of the Court, to be obtained upon summons in Chambers, and after notice to the other side.

In the present case, there was no special direction asked for or granted by the Court when Civil Suit No. 37 of 1937 was decreed. As a consequence, the words 'when taxed and noted in the margin hereof' were inserted in Clause 5 of the decree which is the relevant clause. The wording of this clause leaves no room for doubt that, under the decree, the obligation to pay the costs can arise only when a condition is fulfilled, and that the condition according to the decree is that the costs of the party should be taxed and noted in the margin of the decree. According to Order XVII, Rule 7, it would have been open to the party concerned to have asked the Court when judgment was pronounced for a special direction, in the absence of which, according to the rule, the decree shall contain this condition. Since the decree is worded in this manner, it is futile for the applicant to contend that it must be construed ignoring the condition altogether. The words 'when taxed and noted in the margin,' in view of the wording of Clause 5 of the decree, cannot be regarded as mere superfluity. If these words are understood in their natural sense, and there is no reason why they should not, then it would not be open to the petitioner to say that the entry in the margin of the decree of the taxed costs is only one. of several methods of proving what the amount of the costs is and that it would be open to him to establish that fact by other evidence. So long as this part of the decree is not amended, it would not be possible to hold in favour of the applicant's learned Advocate's contention. Moreover, upholding that contention would result in repealing Rule 7 of Order XVII.

6. The reference made by the Master is answered in these terms.


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