1. The facts in this case are these : On the 13th December 1893 an order was made in favour of the petitioner under Section 145 of the Code of Civil [Criminal?] Procedure, and by the same order he was allowed the costs of the proceeding under Section 148. The costs, however, were not assessed till the 14th March 1894, when the second party was directed to pay a certain sum. That order was set aside by this Court on the 9th May, on the ground that it had been made in the absence of the second party, and the case was sent back in order that the Deputy Magistrate might deal with the case according to law upon notice to the petitioner.' The Deputy Magistrate, who made the order for costs, had, however, in the meantime been transferred to another district, and his successor on the 27th August refused to assess the costs, the order for which was made by his predecessor.
2. On the 26th October the petitioner obtained this rule, calling on the other side to show cause why the Deputy Magistrate's order of the 27th August should not be set aside, and why he should not be directed to assess the costs.
3. The Deputy Magistrate's order, no doubt, followed the decision in Bhojal Sonar v. Nirban Singh I.L.R. 21 Cal. 609, to which I was a party, and in which it was held that a Magistrate 'had no jurisdiction to assess the costs more than two years after the order for costs had been made by his predecessor.' In that decision reference was made to another case, in which it was held that it is only the Magistrate who passes the decision under Section 145 who is authorised to make an order as to payment of costs under Section 148.
4. In the case of Issur Chowdhry v. Bibijan Khatun decided by Macpherson and Banerjee, JJ., on 5th January 1891, those learned Judges expressed the opinion that an order for costs ought to be made at the time of the decision, but the matter was decided on another ground.
5. In the present case the order for costs was made at the time the decision was passed and by the same Magistrate who passed the decision. That being so, I think there is no objection to the costs being assessed by a different Magistrate, if application is made to him within a reasonable time. In the case of Bhojal Sonar v. Nirban Singh I.L.R. 21 Cal. 609, what mainly influenced me in refusing to interfere was the great delay that had been allowed to occur between the order for, and the assessment of, the costs, though I am bound to add that Mr. Justice Hill is still of opinion that that decision was right as a matter of law.
6. The provision in question is of a quasi civil character, and indeed the language of the section appears to have been borrowed from Section 219 of the Code of Civil Procedure, and it is not necessary in civil cases that the costs should be assessed or taxed at the time of the decision, or by the same officer who decided the case.
7. I am accordingly of opinion that the rule should be made absolute, to sot aside the order of the Deputy Magistrate of 27th August 1894, and to direct him to assess the costs according to law.
8. I Concur