1. The main question raised in this appeal preferred by the judgment-debtors under a decree on a mortgage is whether the decree-holders are entitled as a result of the application of Section 19 of Madras Act IV of 1938 to their decree to claim not only the costs as decreed but also the costs already incurred by way of execution of the decree.
2. The argument of the appellants is founded on a sentence in the judgment in Venkatammal v. Ramaswami Aiyar (1940) 2 M.L. 685. The main question considered in that judgment related to the nature of the substantive debt. At the end of the judgment we say,
The plaintiff-respondent has contended that by reason of Section 11, the costs of execution can be recovered in addition to the amount recoverable under the provisions of Sections 8 and 9, We are of opinion that the provisions of Section 11, like those of Section 19, relate only to costs as decreed and do not cover costs of execution.
3. The original papers relating to that case are not readily available and we do not know the circumstances which led us to disallow costs of execution in that particular case. The observation that ' the provisions of Section 11, like those of Section 19, relate only to costs as decreed' is correct so far as it goes. But if it has been interpreted as laying down the rule that when a decree is scaled down, the liability for costs of execution under that decrae is somehow cancelled, we must observe that no such rule can be sustained. The liability for costs of execution is not specifically dealt with in Act IV at all. But such a liability if the judgment-debtor is an agri-cuturist is clearly a debt originating on the date on which the execution is ordered. The definition of the word 'debt' includes any liability due from an agriculturist whether payable under a decree or order of a civil Court or otherwise. The liability for costs is a liability payable under an order of a civil Court. It originates on the date of that order. If this order is passed before the 1st of October, 1932, the liability for execution costs will have to be scaled down under Section 8, that is to say, the interest thereon as on 1st October, 1937 will be cancelled and thereafter the liability will carry interest at the statutory rate or the Court rate whichever is less. If the order for costs is one passed between 1st October, 1932, and the date of the commencement of the Act, Section 9 will apply thereto and the interest on costs will be scaled down to five per cent. There is no warrant in the Act for the cancellation of the principal due from an agriculturist under any debt of any kind except in so far as the second clause or the explanation to Section 8 apply, which ordinarily will not come into operation with reference to execution costs.The mere silence of Section 11 or Section 19 with reference to a liability for costs of execution certainly cannot be taken as a provision of law cancelling such a liability. We hold therefore that the judgment-debtors are not entitled to relief in respect of costs of execution except to the extent that interest thereon will be reduced to five per cent. under Section 9 of the Act.
4. The further contention relates to the valuation of the property in the sale proclamation with reference to the Commissioner's report on the previous execution petition. It is contended that the value of the property has since increased. The remedy is the application of Order 21, Rule 66(2)(e) Civil Procedure Code as amended in Madras, whereunder the valuation given both by the decree-holder and by the judgment-debtor shall be specified in the sale proclamation.
5. The appeal is allowed to the extent that costs of execution will bear interest only at 5 per cent upto 22nd March, 1938, and thereafter at the decree rate and that the valuation given both by the decree-holders and the judgment-debtors shall be specified in the proclamation. In other respects the appeal is dismissed and having substantially failed, the appellants must pay the costs of the respondents.