1. This appeal by the defendant in C. S. No. 68 of 1967 on the Original Side of this court is directed against the order of Mohan J. in Diary No. 11511 of 1974 dated 14-2-1975 directing the inclusion of Rs. 100 and Rs. 150 said to have been paid by the appellant on 11 -4-1967 and 26-4-1967 respectively, Rs. 850 paid to the receiver for his remuneration and Rs. 5017-30 paid to the receiver for his expenses as per order dated 11-4-1967 in Appn. No. 849 of 1967 in the costs awarded to the respondent (plaintiff) in the decree in the said CS No. 68 of 1967.
2. The judgment dated 7-7-1971 of N.S. Ramaswami J. declares the respondent to be entitled to costs from the appellant. In accordance with Order XVIII Rule 6 of the Original Side Rules, clause 3 of the decree declares that the respondent is entitled to costs of suit when taxed and noted in the margin of the decree. One of the prayers in the suit was for appointment of a receiver to take charge of the properties described in schedule I to the plaint and protect the same and safeguard the interest of the respondent as the pledgee of those properties. An interim Receiver had been appointed by order dated 10-4-1967 in Appn. No. 840 of 1967, pending the suit. Clause 8 of the decree provides for adjustment of the amount deposited into court by the Receiver as the sale proceeds of the hypothecated goods towards the amount due to the respondent under the decree. The respondent filed an application on 21-7-1971, before the Registrar to tax the bill of costs filed by it. The bill of costs included the aforesaid four sums of Rs. 100, Rs. 150, Rs. 850 and Rs. 5017-30 forming items 5, 6, 11 and 13 respectively. The appellant opposed the inclusion of the two sums of Rs. 100 and Rs. 150 and contended that the third sum of Rs. 850 cannot be included as costs and that the expenditure of Rs. 5017-30 had not been authorised by the court and could not, therefore, be included in the decree. The First Assistant Registrar, declined to include those four items in the costs on the ground that there was no specific direction of the court to include them. Thereupon the respondent took out an application in March 1973, for including those four items in the costs. The appellant opposed that application, reiterating the objections raised by him before the First Assistant Regisrar and contending that the remedy of the respondent was only by way of appeal against the order of the First Assistant Registrar. The application was returned by the Registry as it was felt that only an appeal could be filed against the order of the Assistant Registrar and not a separate application. The respondent represented the application (Diary No. 11511 of 1974) on 12-11-1974, saying that the taxing officer's order does not appear to be wrong for an appeal to be preferred and that since the inclusion of the four items had not been specifically ordered by the court, the application may be placed before the court for orders. Diary No. 11511 of 1974 came up for hearing before Mohan J. on 14-2-1975, and the learned Judge ordered inclusion of those four items in the costs awarded to the respondent. Subsequently the learned Judge dismissed the said application No. 1425 of 1975 (Diary No. 11511 of 1974) on 3-11-1975 on the ground that no further order was necessary on the application in view of his order dated 14-2-1975 on Diary No. 11511 of 1974. Hence this appeal.
3. It has been contended in the memorandum of grounds of appeal that the learned single Judge should have dismissed the application filed for the inclusion of the four items in the costs since, according to the respondent, as per Order IV Rule 7 of the High Court Fees Rules 1965, only an appeal lies against the decision of the Taxing Officer and if no appeal is preferred in time, his decision becomes final.
4. The learned counsel for the respondent submitted that the costs were taxed by the Assistant Registrar only on 17-10-1974 and that in view of the provisions of Order III Rule 1 of the High Court Fees Rules, 1956 which lays down that:--
"No costs of, or incidental to, a proceeding shall be allowed, unless the same are expressly awarded by an order, or decree."
The Assistant Registrar was justified in declining to include these four items in the costs, as those items are incidental to the proceedings in the suit and there was no specific direction in the judgment to include those incidental costs in the costs of the suit awarded to the respondent and there was, therefore, no need to file an appeal against the Assistant Registrar's order and the application for including those four items in the costs was consequently filed within a month from 17-10-1974 for an order of the court and the learned single Judge was justified in including them in the costs.
5. The learned counsel for the appellant did not contend before us that an appeal should have been filed against the order of the Assistant Registrar declining to include the four items in the costs awarded to the respondent. But he contended that an application for review of the judgment by providing for payment of incidental costs should have been filed within 30 days from the date of the judgment as provided for in Art. 124 of the Limitation Act, and no separate application for including those four items lies and that, since costs are in the discretion of the court in view of Section 35, C. P. C., only an application for review of the judgment should have been filed end the amounts cannot be included in the costs by an amendment of the decree. No doubt, Section 35(1) C. P. C. lays down that:--
"Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being In force, the costs of an incident to all suits shall be in the discretion of the court, and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid".
But Clause (2) of that section lays down that:--
"Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing." In the present case, the court has not directed in the judgment that any portion of the costs of or incidental to the suit shall not follow the event. The learned counsel has not placed before us any circumstances or reason for the court disallowing the amounts concerned in this appeal, which are costs incidental to the proceedings in the suit, on a review of the judgment under Order XLVII Rule 1 C. P. C. within the period provided under Article 124 of the Limitation Act. This is not a case where an application for review of the judgment could have been filed, for, as already stated, the judgment declares the respondent to be entitled to costs of suit. Costs, according to Section 35, C. P. C. as also Order III Rule 1 of the High Court Fees Rules, 1956, include costs incidental to the proceeding or suit. There is, therefore, no need for the respondent to move any application for review of the judgment for including the incidental costs in the costs taxed and noted in the margin of the decree which had been done by Assistant Registrar on 17-10-1974. It was only from the order dated 17-10-1974 of the First Assistant Registrar that the respondent came to know that these four items of costs incidental to the proceeding were not included in the amount of costs taxed and noted, in the margin of the decree. According to the respondent, the First Assistant Registrar did not err in declining to include these four items of costs incidental to the proceedings having regard to the fact that the learned Judge, who disposed of the suit, has not stated in his judgment in so many words that the costs awarded to the respondent shall include costs incidental to the proceedings in the suit. In the circumstances of the case, we are of the opinion that the respondent was justified in proceeding on the basis that there is no need to file any appeal against the order of the First Assistant Registrar under Rule 7 of Order IV of the Original Side Rules, 1956 which says that any party or his advocate or attorney who is dissatisfied with the decision of the Taxing Officer may, within ten days of the decision, appeal by summons to the Judge. Appln. No. 1426 of 1975 should, under the circumstances of the case, be treated as an application for amendment of the decree as provided for in Section 152 C. P. C. which lays down that:--
"Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
Order 41-(a) of Dec. 1879 (England) providing for correction of clerical mistakes in judgments or orders which later became Order 28, Rule 11 corresponds to Section 152, C. P. C. and reads:--
"Clerical mistake in judgment or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a judge on motion or summons without an appeal".
Fry J. has observed in Fritz v. Hobson (1880) 14 Ch D 542 thus:--
"This is an application to give the plaintiff the costs of a motion for an interim injunction made during the long vacation, end afterwards before the Master of the Rolls, when it was adjourned to the trial. The judgment which I pronounced at the trial has been drawn up and passed and entered. In that state of circumstances the defendant resists the application on three separate grounds. In the first place, he says that, in point of substance and merits, the plaintiff is not entitled to the costs. In my judgment the plaintiff is entitled to the costs on that ground. I think that the motion was a proper one to make. The evidence on the trial showed that the plaintiff was justified in making it. The defendant's evidence on the motion was inaccurate to a culpable extent, and contained statements which might well have induced the Judge to order the motion to stand over to the trial, or even to refuse it altogether. I heard the evidence which came out at the trial in opposition to the defendant's affidavits used on the motion, and which were read to me; and from what the defendant himself admitted, it appeared to me that the evidence on the motion on the part of the defendant was strained in many important particulars. In the next place, it is said that I have no jurisdiction to amend the judgment or to grant this application, because the court has no jurisdiction to rehear an action. In my opinion, I have jurisdiction to grant this application. In the first place, it is to be borne in mind that an order was made, although it was not drawn up, directing the motion in question to stand until the trial. According to my understanding of the practice (and this is confirmed by what the Master of the Rolls has said), all orders of the court carry with them in gremio liberty to apply to the court. The judgment at the trial as drawn up reserves express liberty to apply. In Viney v. Chaplin (1858) 3 De. G. and J, 282, application was made under the liberty to apply reserved by the order that the motion should stand to the hearing of the cause, and it appears to me, therefore, that I am right in following Viney v. Chaplin and that I can make the order which I am now about to make either under the liberty to apply reserved by implication in the order on the motion, or under the liberty expressly reserved by the judgment. Though actions are not originally set down before me, but are transferred to me for trial or having only, yet under Rule 1-a of Order LI I have power to direct that any proceeding in the action, whether before or after the trial, shall be taken before me, and, if necessary, I should give a direction to that effect in regard to the present application.
There is another ground on which, in my opinion, I have jurisdiction to make the order asked for, viz, under Order 41-A, In my view, the error in the present case has arisen from the accidental omission of counsel to call my attention to the adjourned motion when I pronounced my judgment, an omission very natural at a time when counsel's attention was directed to matters of greater importance. In substance the motion was before me at the trial, for my attention was called to the affidavits made upon it. I recollect quite enough of what took place, and I am confirmed in my recollection by the notes which I made at the time, to know that all the affidavits upon the motion were in substance before me at the trial, and that the various witnesses who made those affidavits were examined in the course of the proceedings. On this ground therefore, I think I have jurisdiction to make the order.
In the third place, it is said that this application is wrong in form, that it ought to have been an application for a direction to the Taxing Officer to allow the plaintiff the costs of the motion.
It appears to me that the plaintiff's right to the costs depends upon whether the motion is to be considered as successful or unsuccessful, and there is nothing in the judgment as drawn up to show whether it was the one or the other. The Taxing Master might very fairly say that, if the court had intended to give the plaintiff the costs of the motion, there would have been a direction to that effect in the judgment.
I think, therefore, that the application has been made in the proper way, and I shall make a separate order (following the precedent in Viney v. Chaplin) directing the taxation of the plaintiff's costs of the motion, and their payment by the defendant. And as, before making the present motion the plaintiff applied to the defendant to consent to the payment of the costs of the adjourned motion I shall give the plaintiff also the costs of the present motion."
As stated above, the appellant has not placed before us any reason or circumstance, which the learned trial judge could have taken into consideration and disallowed those four items of costs incidental to the proceedings. In Preston Banking Co. v. Allsub (Williams) and Sons, (1895) 1 Ch D 141 A.L. Smith LJ has observed:--
"It has been held that when an order has been passed and entered, and the record does not express the intention of the court it may be altered. And again, an order has been corrected by including in it the costs of an interlocutory proceeding although the Court had at the time when it gave its decision no intention in the matter, it not having been brought to the notice of the court; Blakey v. Hall (1887) 35 W.R. 592."
The decision in Chassum & Sons v. Gordon, (1901) 1 QBD 694 fully supports our view that the application is in the nature of one for amendment of the decree by specifying that it shall include these items of costs incidental to the proceedings. There A.L. Smith, Master of the Rolls, as he then was, has observed -
"There was an action in the Queen's Bench Division in which the plaintiffs recovered judgment against the defendant for a sum to be ascertained by a special reference, with costs. The referee assessed the sum payable to the plaintiffs at .3863, and judgment was drawn up and entered for the plaintiffs for the sum so assessed with costs to be taxed. The plaintiffs carried in their bill of costs for taxation, but by a pure slip they did not include in their bill of costs the sum of .160 Section 11 d.8 which they had paid to the referee when they took up the award. The Master accordingly taxed the bill of costs as carried In and gave his certificate for 516 Section 8 d.7 The defendant paid the plaintiff the two sums of .3863 and .516 S.8 d.7 . The plaintiffs' solicitors shortly afterwards discovered that by a mistake the sum paid to the referee had not been included in the bill of costs carried in for taxation. A summons was thereupon taken out for an order that the defendant should pay the plaintiffs the sum of .160 s.ll d.8. or such amount as might be allowed as a proper payment, and Day, J. ordered that this sum should be referred to the taxing master for taxation, and that the taxing master's certificate should be amended on the ground that there had been a mistake in not including the referee's fees. From that order the defendant appeals to this Court. There can be no doubt that according to the justice of the case the plaintiffs ought to be paid this sum or whatever may be allowed as a proper sum upon taxation. It is satisfactory to know that no technical rule stands in the way of the Court making an order to that effect. In my opinion, the case of Preston Banking Co. v. AIlsup (William) & Song, (1895) 1 Ch D 141 does not touch the question before us. There was no question in that case of any 'accidental slip or omission.' The application was made to the Vice-Chancellor of the County Palatine of Lancester to rehear an order which he had made with regard to the costs of an application before him, the order having been drawn up and entered. The applicant there wanted to reopen the order as to costs, and to have another order made in its place, not upon the ground that the order as drawn up did not carry out the intention of the Court, but upon the ground that the orginal order was wrong and ought not to have been made. The Vice-Chancellor held that he had no jurisdiction to alter the order, and this Court affirmed his decision. That is a very different case from an application to correct a judgment or order which has by some accidental slip or omission been drawn up so as not to carry out the intention of the Court. Where there has been such a slip there is always power, either under the inherent jurisdiction of the Court or under the provisions of Order 28, Rule 11, to correct the error and set the matter right. Order 28, Rule 11 provides that 'clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a judge on the motion or summons without an appeal.' In my opinion, the omission of this item of .160 s.ll d.8 from the bill of costs carried in for taxation was an 'accidental slip or omission' within the meaning of the rule, and the error in the judgment arising therefrom can therefore be corrected 'at any time'. The error may be corrected even after the judgment has been drawn up and entered. There are two authorities which seem to me to be in point. The first is Fritz v. Hobson, (1880) 14 Ch D 542. In that case a motion for an interim injunction had been adjourned to the trial of the action. At the trial the plaintiff succeeded, but his counsel forgot to ask for the costs of the adjourned motion. After the judgment had been drawn up and entered, Fry, J. acceded to an application by the plaintiff to allow the judgment to be corrected so as to include therein the costs of the adjourned motion, holding that he had power to do so either under the liberty to apply impliedly reserved in the order on the motion, or under the liberty to apply expressly reserved by the judgment, or under the provisions of Order XLI-A the terms of which ere now reproduced in Order 28, Rule 11. The other case is Berber v. Purvis, (1886) 56 LT 131, a case in the Court of Appeal. There the judgment directed that the defendant should be at liberty to set off against the sum due to the plaintiff a sum of .453 on account of interest which the defendant had paid on behalf of the plaintiff. The amount of .453 was arrived at by an innocent mis-statement by the defendant that he had paid thus sum, whereas it was discovered, after the judgment was drawn up, that the defendant had by mistake over stated the amount. The Court allowed the judgment to be corrected under Order 28, Rule 11, holding that there was an error in the judgment which arose from an accidental slip of the defendant. These two decisions seem to me to be distinctly in point. For these reasons, I think that the order of Day, J. was right and should be affirmed."
6. The learned counsel for the appellant did not contend before us that the respondent is not entitled to have these four items included in the costs. But he only objected to the procedure adopted by the respondent for that purpose. We are of the opinion, as already stated, that the application has to be treated to be one for amendment of the judgment by directing to include these four items in the costs, and that there is no reason to interfere with the order of Mohan, J., directing the inclusion of those items in the costs awarded to the respondent taxed and noted in the margin of the decree.
7. The appeal is accordingly dismissed, but under the circumstances of the case, without costs,