1. On 23rd October 1936, the Subordinate Judge of Coimbatore passed a preliminary mortgage decree against eight defendants for the payment of the sum of Rs. 1900 with interest and costs, which brought the total amount to Rs. 4396-4-6. The mortgagors were defendants 1 and 2. The other defendants were alienees of portions of the properties mortgaged. Defendant 3 who is the appellant in this appeal, appealed to the High Court against the preliminary decree. The mortgagee filed a memorandum of cross-objections. The result was that the appeal was dismissed and the memorandum of cross, objections was allowed. This Court held that the mortgagee was entitled to a total sum of Rs. 8120-14-8. As defendant 3 had lost both on the appeal and on the memorandum of cross-objections, this Court directed that he should pay as the costs on the appeal Rs. 273-8-7 and as costs on the memorandum of cross-objections Rs. 399-15-0. In due course the Subordinate Judge passed a final decree in accordance with the High Court's judgment, and on 6th February 1941, the decree-holder applied for the sale of the hypotheca. There was then due to him Rs. 10,075-4-8 excluding the costs which defendant 3 had been directed to pay by the appellate decree. The sale realized only Rs. 8265 and as the personal remedy against the mortgagors had become time barred, the decree-holder was not able to apply for a personal decree against them. On 27th March 1942 he filed an application in the Court of the Subordinate Judge for execution of that part of the High Court's decree which directed defendant 3 to pay costs. The application was returned to the decree-holder on the ground that the sale proceeds had to be appropriated first to the costs due to the decree-holder and, therefore, he was not entitled to ask for the execution of the decree for costs. On 13th July 1942, the decree-holder filed another application for execution of the decree for costs and asked that the delay in presenting this petition might be excused. On 6th August 1942, the Subordinate Judge rejected this application. On the 15th of that month the decree-holder applied to the Subordinate Judge for an order directing the High Court's decree for costs to be transferred to the Court of the Subordinate Judge of Palghat for the purpose of execution. On 23rd February 1943, this application was granted. The present appeal has been preferred by defendant 3 against this order.
2. The appellant relies on the decision of this Court in Sabapathi Pillai v. Chookalinga Pillai : (1913)25MLJ552 . There a Bench, consisting of Benson and Sundara Ayyar JJ., held that the principles embodied in Order 34, Rule 13, should be applied to sales held in execution of mortgage decrees. It was, of course, recognised that the rule only applied to cases covered by Rule 12, but the learned Judges considered that the principles embodied in Rule 13 should be followed in all sales held in execution of mortgage decrees. On this footing the Court directed that the sale proceeds should first be appropriated to interest and the costs of the suit, and then to principal. It is not necessary for us to consider whether the judgment in that case is open to criticism, as it has no application here. In that case the Court was considering merely the decree passed by the trial Court and there was no direction that a non-mortgagor defendant should be made personally liable for costs.
4. A case which is in point is Rajagopalaswami Naicker v. Palanisami Chettiar : AIR1932Mad155 . This was also decided by a Bench (Jackson and Pakenham Walsh JJ.). It was there held that in a mortgage suit the Court has power to pass a personal decree for costs against the defendants who were not parties to the mortgage, notwithstanding that the preliminary mortgage decree is silent on the point. The defendants were the mortgagor and his three sons who were impleaded. as defendants 2, 3 and i. The trial Court in passing a mortgage decree directed that after the hypotheca had been sold the plaintiff might apply for a personal decree against the mortgagor for the balance still due under the mortgage and costs and against defendants 2 and 3 for the amount due for costs. As the decree had directed that defendants 2 and 3 should be personally liable for costs, the decree-holder was entitled to proceed against them in execution.
5. That is what the decree-holder seeks to do in this case. The decree of this Court passed on the appeal against the preliminary mortgage decree expressly made defendant 3 liable for the costs incurred in this Court. No order as to costs was passed against the other defendants. In the circumstances mentioned the mortgagor-defendants could no doubt have objected to the costs in the appeal being included in the sum for which execution was asked for on 6th February 1941, but the fact that they raised no objection cannot affect the rights of the decree-holder to proceed against defendant 3. Costs are in the discretion of the Court and the Court can lawfully direct who shall be liable for costs. In this case the only person who could be made liable for costs was defendant 3. He was the sole appellant and he was the only defendant who opposed the memorandum of cross-objections filed by the decree-holder. If the contention advanced on behalf of defendant 3 were to be accepted, it would mean that a person in his position could file an appeal to the Privy Council, without incurring any liability for the payment of costs there. We consider that Rajagopalaswami Naicker v. Palanisami Chettiar : AIR1932Mad155 was rightly decided and that the principle embodied in that judgment applies in the present case. The appeal will be dismissed with costs.