1. In proceedings under Section 145 of the Code of Criminal Procedure M.R. Ry., P. Section Vasudeva Rao, the Sub-Divisional Magistrate passed a final order which included a direction that the counter-petitioner should pay the petitioner's costs. Within 3 days after the order of the 24th August 1910, two memoranda for taxing costs were put into Court by the petitioner's vakils. The Magistrate passed an order on the second of these memoranda 'check and include' but through some negligence in the Magistrate's office, costs were not actually taxed.
2. Nearly 3 years later, the petitioner's son applied to the Magistrate's successor in office for costs being assessed, the petitioner having died in the interval.
3. The Magistrate has rejected his application on the ground (1) that the petitioner's son had not been brought on record as legal representative of his deceased father (2) that there had been great delay in applying.
4. The first objection is not good. The Code of Criminal Procedure contains no special provisions for bringing on record representatives of deceased parties. All that the Court has to see is that the appeal or application has not abated by reason of the death of one of the parties.
5. The delay might have been overlooked if the son's petition had been treated as a reminder to the Court to do that which it should have done when the memoranda were presented.
6. The respondent's Counsel and the Public Prosecutor have raised another question which is whether the successor of the Magistrate who decided the case has no jurisdiction to assess the amount of the costs.
7. I think that this has been rightly settled in the affirmative by the decisions in Mahomed Ershed Ali Khan Chowdhry v. Saroda Prasad Shaha I.L.R. (1895) C 37 which dissented from Bhojal Sonar v. Nirban Singh I.L.R. (1894) C. 609 and followed Girdhar Chatterjee v. Ebadullah Naskar I.L.R. (1895) C. 384 and Binoda Sundari Chowdhurani v. Kalikristo Pal Chawdhury I.L.R. (1895) C. 387.
8. We set aside the Magistrate's order and direct him to pass orders, assessing costs in the case.
Sadasiva Aiyar, J.
9. I entirely agree. Courts should always lean in favour of that view of the law which would enable a party who has got an order in his favour to obtain the fruits of that order and not in favour of highly technical objections which render the Court's order infructuous and a mere piece of waste paper. Courts have the power within reasonable limits to invent rules of procedure for this purpose when the legislature has not enacted such rules unless the legislature prohibits them from doing so.