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Surendra Nath Roy Chowdhury and ors. Vs. Girija Nath Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.910
AppellantSurendra Nath Roy Chowdhury and ors.
RespondentGirija Nath Roy Choudhury and ors.
Cases ReferredGirija Nath Roy Chowdhury v. Svrendra Nath Roy Chowdhury
Excerpt:
decree - amendment--suit dismissed on preliminary point--appeal--judgment of first court set aside and appeal allowed 'with costs'--meaning of 'costs'--costs of appeal only--court fees act (vii or 1870), section 13--court-fee on memorandum of appeal to he refunded to appellant and not charged upon respondent. - .....court. it has been suggested, however, that the learned judges intended to allow the then plaintiffs the costs of the original court as well; such an interpretation is, in our opinion, entirely inadmissible. thee learned judges could not have intended to allow to the then appellants the costs of the original court inclusive of the court-fees paid on the plaint, irrespective of the manner in which the suit might ultimately terminate. we must, therefore, allow this objection also and direct that the decree be amended by the omission of that portion of it which directs the then respondents to pay the costs of the plaintiffs-appellants in the court of first instance.3. there will be no order as to the costs of this rule.
Judgment:

1. This is a Rule for amendment of the decree of this Court in Girija Nath Roy Chowdhury v. Svrendra Nath Roy Chowdhury 16 C.L.J. 1 : 16 Ind. Cas. 84. It has been contended, in the first place, that an order ought to have been made under Section 13 of the Court-Fees Act for refund of the fee paid on the memorandum of appeal, to (he then successful appellants and that the amount ought not to have been) entered in the decree so as to throw an unnecessary burden upon the unsuccessful respondents. This contention is obviously just. We, therefore, now make an order under Section 13 of the Court-Fees' Act and direct that Rs. 285 which was paid on account of Court-fees on the memorandum of appeal to this Court by the plaintiffs-appellants be refunded to them, The decree of this Court will be amended by the omission of this sum.

2. It has been contended, in the second place, on behalf of the petitioners that the decree ought not to have contained a direction for payment of the costs of the Court below by the defendants to the plaintiffs. It appears that the suit had been dismissed on a preliminary ground, namely, that it had been improperly framed. Upon appeal, that decision was reversed, and the order of the Court was that the appeal be allowed with costs; that clearly means the costs of the High Court. It has been suggested, however, that the learned Judges intended to allow the then plaintiffs the costs of the original Court as well; such an interpretation is, in our opinion, entirely inadmissible. Thee learned Judges could not have intended to allow to the then appellants the costs of the original Court inclusive of the Court-fees paid on the plaint, irrespective of the manner in which the suit might ultimately terminate. We must, therefore, allow this objection also and direct that the decree be amended by the omission of that portion of it which directs the then respondents to pay the costs of the plaintiffs-appellants in the Court of first instance.

3. There will be no order as to the costs of this Rule.


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