Ramaswami Gounder, J.
1. This revision is filed by the defendants in a small cause suit in which the plaintiffs claimed to recover from the defendants the costs awarded by a Magistrate in his order under Sections 147 and 148, Cr. P. C. It would appear that the plaintiffs closed a sluice and caused obstruction to the defendant's alleged right to the flow of water through that sluice. That led to disputes between the parties and so proceedings were taken under Section 147, Cr. P. C.
The order of the Magistrate was to restrain the plaintiffs from causing obstruction with regard to the defendants' right to the flow of the water. Further, the Magistrate, in exercise of the powers conferred on him under Section 148 (3), Cr. P. C. also directed the plaintiffs to pay the costs of those proceedings to the defendants. Subsequently, the plaintiffs instituted O.S. No. 41 of 1951 on the file of the District Munsif's Court, Mangalore, for restraining the'defendants from allowing the water into the plaintiffs' plot.
That suit resulted in a decree with costs in favour of the plaintiffs. In the meanwhile the defendants had recovered from the plaintiffs costs awarded to them by the Magistrate. But, it will be seen that in the judgment and decree passed in that suit, there was no reference whatever to the costs awarded by the Magistrate. The plaintiffs instituted the small cause suit out of which this revision arises to recover back from the defendants the costs ordered in their favour by the Magistrate, and the small cause Judge decreed the suit. Against that decree the present revision has been filed.
2. The contention for the present petitioners defendants is that the costs awarded by the Magistrate stand unaffected by the subsequent proceedings in O. S. No. 41 of 1951, and though the plaintiffs succeeded in that suit the order for costs passed by the Magistrate holds good and therefore the plaintiffs are not entitled to recover the same by means of this suit. On the other hand, the contention for the plaintiffs which was accepted by the trial Court was that once an order of the Magistrate was varied by a decree of a civil Court in regard to the rights of parties, in consequence of that decree the order of the Magistrate in regard to costs also must be deemed to have been set aside and therefore the plaintiff would be entitled to recover costs in this suit.
Though the order as to costs passed by the Magistrate is provided for under Section 148 (3), Cr. P. C., it must be taken that it is part of the order which the Magistrate passed under Section 147. It will be seen that by virtue of Clause 4 of Section 147 an order of the Magistrate passed under that section shall be subject to any subsequent decision of a civil Court of competent jurisdiction. If therefore the order as to costs passed by a Magistrate under Section 148 (3) should be deemed to be part of his order passed under Section 147, then that that of the order of the Magistrate relating to costs must also be subject to the decision of a civil Court of competent jurisdiction.
That appears to me to be the proper view to take in this matter though Devadoss J. in Mohideen Kariya v. Perianayakam : AIR1925Mad233 , in dealing with the analogous claim suit under Order 21, Rule 63, C. P. C. held that the costs of the claim petition should not be allowed in favour of the successful plaintiff in the suit. According to that view, the costs in the claim petition will remain unaffected by the results of the subsequent claim suit under Order 21, Rule 63, C. P. C. But that view has been held to be unsupportable in Ambalal v. Punjabhai, AIR 1943 Bom 129 (B), where Divatia J. observed at page 132 :
'The Madras view that the Court hearing the suit has no power to change the order of costs is also, in my opinion, not correct.' .
3. If the opinion expressed by Devadoss J. is not correct, that is to say, assuming that the Court trying a claim suit has got the power to vary an order of the executing Court as to costs of the claim petition, in this case the question is whether on similar principle the order of the Magistrate awarding costs has been set aside or modified by the civil Court in O. S. No. 41 of 1951. It will be seen from a copy of the judgment, Ex. A-4, that there was no prayer at all in that suit in regard to costs awarded by the Magistrate, and the judgment and decree are silent on that matter.
It cannot therefore be said that the civil Court of competent jurisdiction has varied or set aside the order of the Magistrate in regard to the costs. So long as that order had not been so varied or set aside, it would follow that it would not be recoverable by an independent suit. In the Bombay case cited above, the petitioner had obtained a decree against one Jeevanlal and in execution attached certain lands belonging to the opponent applied for raising the attachment. The application was dismissed with costs on the ground that the opponent was not in possession of the property.
Thereafter the petitioner recovered the costs of those proceedings from the opponent, The opponent then filed a suit under Order 21, Rule 63 for a declaration that the suit property was not liable to attachment and sale in execution of the petitioner's decree. It was held that the opponent was entitled to a declaration that the suit property was not liable to be sold in execution of the decree. Thereafter the opponent applied under Section 144, C. P. C. for a refund of the costs which the petitioner had recovered from him on the ground that executing Court's order was set aside by the decree in the regular suit.
It was held by the lower Courts that the applicant would be entitled to refund because as a result of the decree in the regular suit the order of the costs in the claim proceedings became unjust and inequitable so that the opponent was not entitled to keep the costs which he had recovered- But in the High Court, Divatia J. held that the order of costs made by the executing Court in the claim proceedings is not automatically set aside if the party against whom it is made succeeds in the regular suit.
He pointed out that in the claim proceedings the order consisted of two parts (1) allowing or rejecting the claim and (2) awarding or refusing costs. Setting aside the first part of the order in the regular suit does not automatically set aside the second part. I respectfully agree with that decision. The learned counsel for the plaintiff-respondents brought to my notice a decision of the Nagpur High Court in Chintaman Ramjikant v. Govind Vithal, AIR 1938 Nag 376 (C), which supports his contention. But that decision has been dissented from in the Bombay decision referred to above and is also not in consonance with the decision of our High Court.
4. The result is that in this case the order of the Magistrate awarding costs has not been modified or set aside by the decree in the subsequent civil suit. It was only in regard to the rights of the parties that the order of the Magistrate was set aside. That did not affect the other part, of the Magistrate's order regarding costs. That being so, it is not open to the plaintiffs to institute this small cause suit to recover the costs.
5. This revision is therefore allowed, and the suit will stand dismissed with costs in both the Courts.