1. A suit was brought for redemption and was decreed, the mortgagee being ordered, for special reasons stated by the trial Court, to personally pay the costs of the plaintiff. On this question of costs an appeal was preferred to the District Court; and the District Judge came to the conclusion after considering the facts of the case that the defendant should not have been called upon to personally pay the costs.
2. It is contended that no Second Appeal lies against an order for costs and certain authorities have been quoted; but there can be no doubt that if. in the Courts below wrong principles have been applied or there is some error of law in awarding the costs, then this Court can interfere in Second Appeal. If in the present case, for example, I can be satisfied that the lower appellate Court had considered the matter from the right point of view and had found after consideration of the facts that the first Court had wrongly exercised its discretion, then it would not be open to me to interfere with the lower Court's finding. It is argued that the lower appellate Court misunderstood the facts upon which its decision was based; but even if it did not, it does not seem that the lower appellate Court considered the question of costs from the right angle. The trial Court has a discretion in the matter of costs and that discretion should only be interfered with in appeal if the trial Court has exercised its discretion improperly. It nowhere appears in the judgment of the lower appellate Court that the District Judge asked himself whether the trial Court had properly exercised its discretion. He clearly considered the matter of costs as if he had been trying the suit himself. That was not the proper way of approaching the question.
3. The appeal is therefore allowed and the first appeal remanded to the District Court of North Malabar for fresh disposal. The appellate Court will have full liberty to re-consider the facts bearing on this question. The costs of this appeal will abide the result.
4. The Court Fee paid in this Court to be refunded.