1. This appeal is directed against an order of the Court below refusing execution of a decree for costs. The respondent was the tenth defendant, in a suit brought by the plaintiff. He contested the claim, but a decree was made against him and he was made liable for costs. The other defendants settled with the plaintiff and as between them, a decree was made by consent. The tenth defendant then appealed to this Court. At the hearing, upon his application, he was allowed to withdraw from the appeal; and he was also dismissed from the suit with liberty to bring, if so advised, a suit for possession of the property in dispute against the successful plaintiff. The Court further directed that no order be made as regards the costs of the appeal. The question in controversy between the parties now is, whether the plaintiff is entitled to execute the decree for costs of the original Court against the tenth defendant. On his behalf, it has been contended that as he was dismissed from the suit, the position is precisely the same as if he had never been a party to the suit, and, that consequently there can be no decree for costs against him capable of execution. In our opinion, this contention is fallacious. It need not be disputed that, as an ordinary rule, only the parties to a litigation can be made liable for costs. James Bevis v. Turner 7 B. 484. The case of Jointee Chunder Sein v. Anundo Lull Das 14 W.R. O.C. 1. where Sir Barnes Peacock, C.J. followed the decision in Hayward v. Giffard 4 M. & W. 194 : 6 D.P.C. 699 : 7 L.J. (N.S.) Ex. 256 : 51 R.R. 529 shows that the Court may, in exceptional cases, make a stranger to a suit liable for casts of the litigation, for instance, where the party on the record is a mere puppet in the hands of the stranger. It is not necessary for the decree-holder, however, to rely on this exceptional doctrine in the present case, because in our opinion, the respondent is not in the position of a stranger to the suit. He was a party to the litigation in the Court of first instance; in fact, he was the sole contesting defendant. It was his opposition which protracted the litigation and threw the burden of costs upon the plaintiff. It is unquestionable, therefore, that in the Court of first instance, the decree for costs was properly made against him. The mere circumstance that upon an appeal prefered by him to this Court, he was dismissed from the suit, does not justify an inference that the Court intended to absolve him from the liability for costs under the decree of the Original Court. The effect of the order of this Court plainly was to leave the question in Cectroversy between him and the plaintiff open for consideration in a subsequent litigation; but there was no intention to set aside the decree for costs made against him. The Court expressly stated, on the other hand, that except in so far as it is affected by this order, the decree of the lower Court will stand,' There is obviously no inconsistency between the decree for costs against the tenth defendant and the order that he be dismissed from the suit in order that all questions in controversy between him and the plaintiff may be left open for consideration in a subsequent litigation. In fact, it is not, and it cannot be, disputed that if the course ultimately adopted by the tenth defendant on appeal to this Court had been followed by him at an earlier stage of the litigation in the Court of first instance, that Court might has left all the matters in controversy between him and the plaintiff open and yet might have made him liable for all the costs. In our opinion, the order of the Court below cannot be supported and must be discharged.
2. The result is that this appeal is allowed and execution directed to proceed. The appellant is entitled to the costs of this appeal. We assess the hearing fee at two gold mohurs.