1. The question raised relates to an award of costs. As regards the Rs. 100 awarded, as' I read the order, for costs incurred before it, the lower. Court seems to have exercised its discretion and it is not shown to have done so in any respect unjudicially. With such' an exercise it is not open to me to interfere in revision.
2. There is, however, in the order no reference to the costs incurred by 3rd defendant in this Court or to the fact that the order of this Court, remanding the case, directed that costs before it should abide and follow the result. It is urged on the one hand that the lower Court had no choice but to give effect to this order; on the other that (1) it has used its discretion to refrain from doing so; (2) there was nothing in this Court's order by which that discretion was taken away. Reference to the lower Court's order shows that it did not mention expressly or impliedly costs in this Court and that, to judge by its tenor, only costs before itself were in its mind. This Court's decree is in a usual form and there is no reason in the present case for refusing its ordinary effect to the wording or for holding that the learned Judges concerned did not mean costs before them to be paid to the party or parties, in whose favour the litigation might end, It is said that when a litigation ends, as this has done, in the withdrawal of the plaintiff's claim, there is no 'event' which costs can abide and follow. But the authorities relied on in Myers v. Dejries (1879) 4 Ex. D. 176, Myers v. Defries (1880) 5 Ex. D. 180 : 49 L.J. Ex. 266 and Howell v. Bering (1915) 1 K.B. 54 do not support this conclusion. They relate to the effect of findings on issues and the identification of such findings with the 'event'. That ir, they involve attempts to define 'event' in a connection and for a purpose different from that now in question. Speaking more generally, however, Buckley, and Kennedy, learned Judges in the last case referred to, fully recognise that the 'event' was nothing but the outcome or result of the proceedings and there is no reason why the word should not be the description applicable to the withdrawal of a suit and its consequences with reference to Order XXIII, Civil Procedure Code. Taking this view, I hold that the lower Court ought to have given effect to this Court's order as to costs and that it did not do so.
3. It is then necessary to mention that a preliminary objection has been made, that no appeal lies. I do not deal with the objection on its merits, because in. the absence, as I hold of any attempt by the lower Court to apply itself to this part of defendants' claim, there was clearly a failure on its part to exercise jurisdiction and if there is no appeal, defendants will suffer distinct prejudice by the lower Court's order and have no remedy against it. I, therefore, decide to treat the appeal in the alternative as a revision petition and to modify the lower Court's decree by inserting in it as payable to 3rd defendant, who alone is appealing here, provision for the payment to her by plaintiffs of the costs incurred by her in this Court in Appeal Suit No. 111 of 1910, addition to the amount already awarded. Plaintiffs and 3rd defendant will pay and receive proportionate costs in these proceedings, on the basis that they are in revision and not appeal. Defendant No. 2, who has appeared here, will bear his own costs.