Pakenham Walsh, J.
1. This was a suit brought by the plaintiffs on certain dealings in khata between the 1st plaintiff's wife and the defendants. The khata was seltled in 1923 and a sum of about Rs. 40,000 was found due. The 1st plaintiff's wife died on June 9, 1923, leaving an unregistered will in favour of the plaintiffs. The will is dated June 5, 1923. This suit was filed on September 10, 1925, and no probate had been taken out nor succession certificate before the filing of the suit. An application for attachment before judgment was taken out by the plaintiffs on October 6, 1925. We find from Ex. 11, a reply notice sent by the defendants' Pleader to the plaintiffs' Pleader, that the defendants had no objection to pay the suit amount if proper security was furnished or if probate of the will had been obtained. This notice was said to have been received on October 12, 1925, and on October 17, 1925, the 1st plaintiff filed a further affidavit Ex. XVI in the attachment proceedings in which he stated that
This letter (of the defendant dated October 12, 1925), implies that the first defendant is ready with money and he may be directed to pay the money into Court, and if he fails to pay, his bad motives and objects will be clear to the Court.
2. Hence it is obvious that the plaintiffs suspected that this letter Ex. 11 was a piece of bluff. However the defendants did deposit the amount in Court on October 24, 1925, and on November 24, 1925, they filed a written statement. Ultimately the Court held that it could not pay the money to the plaintiffs without probate of the will being secured and this was not done until 1928, after which the suit was disposed of. The Court ordered that the defendants should pay interest for one month from October 24, 1925, to November 24, 1925, that is from the date of the deposit to the date of the written statement on the ground that no notice of the deposit as required by Order XXIV, Rule 2, Civil Procedure Code, had been served on the plaintiffs. As regards costs, the lower Court ordered the defendants to pay the plaintiffs one-half of the court-fee and to bear their own costs except to the extent to which they succeeded. This appeal is preferred by the defendants on two matters, first with regard to the interest allowed for one month from October 24, 1925, to November 21, 1925, and secondly as regards the directions as to costs.
3. With regard to the first matter the question is whether subject to their giving security, the plaintiffs could have withdrawn the amount deposited in Court if they had pleased. Looking into the previous correspondence between the parties and to the subsequent statements and affidavits filed, we feel no doubt that had the plaintiffs been willing to give security they could have drawn this amount immediately after it had been deposited. We have already alluded to defendants' offer Ex. 11 which reached the plaintiffs by October 12, 1925, and it is the plaintiffs who by Ex. 14, invited the Court to ask the defendants to make this deposit, evidently believing that the offer of deposit was not serious. There is in Ex. 20, dated July 6, 1927, a statement in para. 5 which runs thus:
even on the day on which we deposited money in Court, we represented to the Court in the presence of the other side that we do not want to keep the plaintiffs off from the money and that all that we are anxious for is that no opportunity be left to the plaintiffs to trouble us after receiving the money.
4. This statements has not been specifically challenged either by further affidavit or by any evidence. When we look at the issues we find that the plaintiffs were contending all along that they could obtain the money without probate or succession certificate or security. It seems therefore impossible to believe that they did not have notice of the deposit of this money nor do they assert in the evidence or elsewhere, that they had no notice. Order XXIV, Rule 2, Civil Procedure Code, no doubt provides that notice of deposit shall be given through the Court by the defendant to the plaintiff and there is a form (No. 3) in Appendix H to Civil Procedure Code, which runs thus:
Take notice that the defendant has paid into Court Rs...and says that the sum is sufficient to justify the plaintiffs' claim in full.
5. But when the deposit has been made on the challenge of the plaintiffs and in the presence of the plaintiffs, it is not necessary that there should be a separate notice. The learned Sub-Judge who eventually decided the case was not the same as the Sub-Judge to whom the deposit was made. We have come to the conclusion under the circumstances (hat interest was not chargeable for this month, as plaintiffs could have withdrawn the money by giving security.
6. Then as regards costs, they are, no doubt, in the discretion of the Court but we find that the lower Court has acted under a misapprehension when it held that the plea that the defendants offered to pay the amount if only a certificate was produced or security furnished was an after-thought. In his evidence, as P.W. No. 4 one of the plaintiffs has staled as follows:
Sometime after purchasing court-fees I went to defendants and showed them the stamps and said that I would like to avoid filing suit if they should pay up money. They said they could not pay then. So I filed the suit. No, they said that they would pay money in case I obtained probate or gave security.
7. It is true that further on in cross-examination the plaintiff tried to resile from this and said 'defendants never asked me to give security; but said they had no cash.' But looking into Ex. 11 we feel no doubt that the attitude taken up by the defendants was that they were prepared to pay if security was given, while the plaintiffs persisted that they were not bound to give security or secure probate. That being the case, it is clear that the Court acted under a misapprehension of fact in passing this order as regards costs. The very case relied upon by the respondents in this connection, Parshram v. Dorabji 2 Bom. L.R. 254, will justify our interference in such a case for it says:
A Court has absolute discretion in the matter of costs according to Section 529, Civil Procedure Code, and an Appellate Court will not interfere unless it has proceeded on a manifestly wrong ground such as the application of an erroneous principle or a misapprehension of facts. So long as the discretion was in fact exercised, an Appellate Court will not interfere simply because it would itself have exercised the discretion differently.
8. The principle of the decision in Thakur Das v. Firm Bashi Mai Kishen Chand 64 Ind. Cas. 385, is that a defendant is not legally bound to pay money in a case of this sort until he is satisfied that the plaintiff has produced a succession certificate or probate or letters of administration or some authority to collect the debts due to the deceased person, and if the claimant files a suit in such circumstances he is not entitled to his costs. The lower Court seems to have agreed with this decision which was quoted before it but on account of the aforesaid misapprehension of facts it did not apply it to this particular case when considering the question of costs. There is, however, one matter in which defendants are to blame. The defendants did not send a reply to the plaintiff notice Ex. 10 of August 29, 1925, at once, but sent it only on October 5, 1925, on the very day the suit was filed. The plaintiffs purchased the stamps on September 11, and it cannot be said that they did not wait long enough for a reply to their notice before purchasing the stamps. Had they, however, furnished the security which the defendants had asked for, they need not have filed the suit and they could have obtained a refund of the greater part of the stamp money from the revenue authorities. What they would have lost on the stamps would have been Rs. 115-12-0 and to that sum we think they are entitled. On the other hand we find no reason for not allowing the defendants the costs of Rs. 456-8-0 disallowed by the lower Court. We see, nothing on the record to show that they raised any frivolous defence or unduly protracted the suit. The appeal is therefore allowed except to the extent of Rs. 115-12-0 with proportionate costs.