S.K. Ghosh, J.
1. This is an application for amendment of a decree and it arises under the following circumstances: The applicant Sarat Ch. Basu was originally the sole defendant in a suit for partition instituted by the plaintiffs-opposite party. He filed a W.S. on 26th November 1917. Subsequently there was an amendment of the plaint, by which the respondent Bepin Behary Choudhury was added as a defendant and he filed a W.S. on 27th May 1919. I should mention here that after the amendment by which Bepin Behary Choudhury was added as a co-defendant the plaintiffs were directed to pay and bear their own costs caused by such amendment. On 13th November 1919 the suit came up for hearing before C.C. Ghosh, J., and he dismissed the suit with costs, holding that it was barred by limitation. Thereupon the plaintiffs preferred an appeal which came up for hearing on 1st March 1920 before the Court of appeal consisting of Mukherjee and Fletcher, JJ. The petitioner states in his petition that he instructed his solicitors not to appear and contest the said appeal, and it appears that in fact he did not appear in the appeal. The learned Judges of the Court of appeal allowed the appeal, and in their judgment directed that 'the costs of the appeal would be costs in the suit,' but they said nothing in that judgment regarding the costs of the hearing and the trial before C.C. Ghosh, J. In due course a decree was drawn up and this is the decree which is in dispute before us. The petitioner's case is that he was not aware of the contents of the decree and that as drawn up it was not in consonance with the judgment. The material portion of the decree states as follows:
It is further ordered and decreed that the costs of the original hearing of this suit in its ordinary original Civil Jurisdiction and of the re-trial hereby ordered and the costs occasioned by the said appeal do abide the result of the said re-trial.
2. The petitioner contends that in these terms the decree was not in consonance with the judgment. On the case going on remand certain events happened and there was an application for amendment of the plaint which came up for hearing before Rankin, J. On 28th June 1922, Rankin, J. allowed the amendment and in his judgment directed the plaintiffs to pay all costs of the present petitioner and of the defendant Bepin subsequent to 27th May 1919 up to the date of the said order exclusive of the costs of the appeal. I may quote here the relevant portion of the judgment of Rankin, J.:
In the same way I cannot make any order as regards the costs in the Court of appeal, but since the last W.S. was filed there was a hearing before Ghosh, J., as to the costs of which the Court of appeal has made no order and there have been several applications to me when the suit came on for trial and a remand case, and I propose to order that as a term of the leave to amend, the defendants are to have the costs incurred subsequent to the filing of the written statement on 27th May 1919 (but exclusive of the costs of the Court of appeal) to be dealt with by special taxation.
3. He further said:
In any event I make an order that the plaintiffs will give security for the costs of the two defendants at present on the record and for this purpose the costs of the Court of appeal and those now ordered to be paid are to be excluded. I shall make no order touching those costs of appeal at all.
4. Ultimately the suit came up for hearing before Greaves, J., and on 30th August 1923 he passed judgment in the course of which he made the following directions as to costs:
The defendant Jiban will pay the plaintiffs' costs to be taxed on scale no 2 and the other defendants must bear and pay their own costs. Liberty to apply. Defendants 1 and 2 must pay the costs reserved by the order of the appeal Court.
5. Mr. Bose appearing for the petitioner in this Court has stated that the last direction was added by the learned Judge upon the plaintiff's counsel stating that there were certain costs reserved by the Court of appeal, though in fact it was not so. Thereafter, on 16th August 1935, it appears that the plaintiffs' solicitors made a demand for payment of the sum of Rs. 3,618-10-3, forwarding a copy of the allocatur which showed that this sum represented the taxed costs of the original hearing of the suit before C.C. Ghosh, J., and of the re-trial ordered by the decree of 1st March 1920, and the costs of appeal alleging that they were payable under the decree of 1st March 1920. The petitioner's case is that he then became for the first time aware of the final passing and taxation of the bill for costs and of the form in which that decree had been drawn up. It is contended for him that this decree had never been acted upon until the plaintiffs chose to make this demand. Thereupon the petitioner made an application before the learned Judge on the original side for an injunction restraining the plaintiffs from executing the said decree for costs, and it is said that the prayer for injunction has been granted by the learned Judge. Meanwhile having regard to the fact that the decree had been made by this. Court in its appellate, jurisdiction the petitioner has made the present application for amendment of the decree dated 1st March 1920 as made by Mukherji and Fletcher, JJ. Now it is indisputable that whether under the Civil Procedure Code or under the Rules prevailing on the Original Side of this Court the decree shall agree with the judgment and that where that is not the case the Court has inherent power to amend the decree so as to bring it into consonance with the judgment. The present application is opposed by the plaintiffs opposite party, and the contentions on their behalf are, first that the decree is really not in conflict with the judgment, and secondly that if that is not so the equities of the case are against the present application for amendment.
6. As to the first point, if there was really no conflict as between the decree and the judgment, it is difficult to see why the application should be opposed at all, and why equities should he pleaded in support of the opposition. The relevant passage in the judgment delivered by Ashutosh Mukherji, J. (and Fletcher, J.) on 1st March 1920 is this: 'The costs of this appeal will be costs in the suit.' This is also confirmed by the minutes of the proceedings which say 'costs of the appeal costs in the suit.' There was nothing said as to any other costs, viz. the costs of the original hearing and the costs of the re-trial. The decree however which I have already quoted contains an express reference to these costs, and it further states that these costs as also the costs of the appeal, are to abide the results of the said re-trial. Now it is not the contention of the opposite party in this Court that the judgment of Mukherji and Fletcher, JJ. did not leave the costs to the discretion of the lower Court. There is no doubt also that the words 'costs in the suit' do not mean that costs will follow the event. In Templeton v. Laurie (1901) 25 Bom 230, for instance, the question arose and it was pointed out that where the order was that 'costs shall be costs in the cause' those costs would remain to be dealt with by the Court at the hearing, and the Judge at the trial had still power to deal with such costs. Then as regards the words abide the result there are no doubt cases, for instance, the case in Godavarthi v. G. Lukshmidevasmma AIR 1916 Mad 621, in which it has been held that these words also do not fetter the discretion of the trial Judge though in other cases, for instance, the case in Phanibhusan Roy Choudhury v. Bama Sundari Devi (1900) 4 0 W N 343, the same view has not been taken, but we are not called upon here to decide this point. When the case went back ON remand, Rankin, J., looking no doubt to the judgment of the Court of appeal, made it perfectly clear that the Court had made no order regarding the costs of the hearing before C.C. Ghose, J. and he himself ordered that the defendants were to have the costs incurred subsequent to the filing of the W.S. on 27th May 1919 but exclusive of the costs of the Court of appeal. From the judgment of Greaves, J. there was an appeal preferred by the defendant Jiban.
7. It does not appear that in that appeal the question now at issue was either raised or decided. We do not know to what extent Greaves, J. considered himself fettered by the directions as to costs as stated in the decree of 1st March 1920. We of course cannot and do not make any order touching the decree made by Greaves, J., but so far as the decree of 1st March 1920 is concerned there is that difference in the language, as I have pointed out, as between the decree and the judgment, and since doubts and difficulties have arisen, it seems to me that the best and safest course will be to amend the decree so as to make it agree with the language of the judgment. Then comes the question as to whether such amendment would be against the equities. Learned counsel appearing for the opposite party has strenuously contended that equities are against the applicant because he has made serious delay in asking for an amendment of the decree. In support of this he has drawn our attention to one case, viz. the case in K.C. Mukherji v. Ainaddin : AIR1932Cal563 . In that case the question was whether a certain decree should be amended. Surahwardy, J. laid down this proposition that:
Whenever a decree is found to be not in accordance with the judgment it should be brought into confirmity with it unless circumstances such as the accrual of rights of third parties exist which would make it inequitable to do so.
8. He further held that mere delay would not be a sufficient circumstance, and differing from Graham, J., he held that the decree in that case should be amended as prayed for C.C. Ghosh, J., who ultimately decided the matter said expressly that so far as the law was concerned there was nothing in the judgment of Surahwardy, J., with which he was not in agreement, but on the facts of that particular case he decided that the application for amendment should be refused. In the present case undoubtedly there has been delay in making the application and it cannot be gainsaid that the applicant has been guilty of negligence in not scrutinising the decree. But, on the other hand, it seems to me that there are extenuating circumstances. As I have mentioned already the applicant had not appeared in the appeal which resulted in the decree in question and so there is some ground for his assertion that he had no knowledge of the discrepancies between the decree and the judgment. Further, there was the judgment of Rankin, J. which confirmed the view that the learned Judges of the Court of appeal did not deal with anything but the costs of that Court. The plaintiffs did not appeal against that judgment of Rankin, J.; on the other hand they paid the costs as ordered by him. The plaintiffs also waited so long in having their own bill taxed on the basis of the decree of 1st March 1920. In these circumstances it seems to me that it cannot be said that the equities of the case are so much against the applicant that his prayer for amendment should be refused. In these circumstances we must order that the decree should be amended in a manner indicated in the copy of the decree in red ink which is appended as an annexure to the application. As regards the costs of this application we direct that each party do bear its own costs.
Mukherji, Ag. C.J.
9. I entirely agree.