1. In this mortgage suit the first defendant was the mortgagor; the second and third defendants were puisne mortgagees; the fourth defendant was the purchaser of the equity of redemption of the greater number of the items mortgaged; and the seventh defendant was the purchaser of one item. The first defendant filed a written statement denying his liability and then remained ex parte. The other defendants mentioned above supported the written statement of the first defendant. The third defendant made a special claim to priority and the seventh defendant raised a number of pleas in connection with the item of property that he had purchased. In the decree in the suit the lower Court made defendants 1, 2, 3, 4 and 7 all personally liable for costs on the ground that defendants 2 to 4 and 7 supported the first defendant in resisting the plaintiff's claim. Defendants 2 to 4 and 7 appeal against the decree for costs.
2. It has been argued that in a mortgage suit no person but the mortgagor can be made personally liable for costs. If that contention were correct it would lead to very anomalous results, as the mortgagor might admit the plaintiff's claim and all the resistance come from the other parties to the suit, who would not if this argument were correct be liable for costs at all. Venugopalachariar v. Padmanabha Row (1915) 29 M.L.J. 120 has been quoted as an authority for this peculiar position. That was also a mortgage suit; but the decree contained a declaration of the personal liability of the second defendant (who was not the mortgagor) for the plaintiffs' costs in case the sale proceeds were not sufficient to pay them as well as the mortgage money. The argument was there accepted that Order 34, Rule 6, Civil Procedure Code, which relates to the recovery of any balance due on a mortgage after the sale, does not make any provision for recovery from any person personally other than the mortgagor because the word defendant in Rule 6 means only the mortgagor. Krishna it was a purely technical argument and it turned on the interpretation of Rule 6. In the present case however there is no need for recourse to Rule 6 and no reason has been given why the Court in the exercise of its usual discretion with regard to costs cannot make any person who is a party to the suit liable for a part or the whole of the costs.
3. Although it appears from the record that it was the second defendant's counsel who was responsible for most of the cross-examination of the plaintiff's witnesses and for leading the evidence against the plaintiff, yet it is difficult to distinguish between the responsibilities of the second defendant and the other appellants. It often happens that a particular defendant's counsel cross-examines the witnesses; and if his cross-examination is sufficient there is no necessity for further cross-examination by the counsel for the other defendants. Similarly, one defendant, upon whose peculiar knowledge of the facts the defendants rely, may lead evidence; but if it appears that the other defendants are supporting the defendant who is doing the spade work on behalf of all of them, there is no reason or equity why those other defendants should not be as fully liable for costs as the defendant whose counsel is responsible for most of the cross-examination and for the leading of the evidence on behalf of the defendants. I therefore find myself unable to agree that some distinction should have been made by the lower Court between the case of the second defendant and those of the remaining appellants.
4. It is further argued that in any event the appellants ought not to have been saddled with the costs of the institution of the suit--the argument being that in any event it was necessary to institute a suit and to pay the necessary costs of institution, namely, court-fee, vakalat-fee, and so on, and that the fact that the appellants intervened and opposed the granting of the decree would at the most only make them liable for such costs as might have been incurred after the institution of the suit. There is no doubt some force in this argument; but when another defendant so completely identifies himself with the mortgagor and, as in this case, goes to the extent of opposing the grant of the decree even when the mortgagor was ex parte, it is difficult to hold that the trial Court is not justified in declaring that those defendants who opposed the suit should be as fully liable for costs as the mortgagor himself. I do not therefore feel justified in interfering with the discretion of the trial Court in the matter of costs.
5. The result is that this appeal is dismissed with costs.