1. A suit for the setting aside of a sale was decreed by the first Court and the decree directed that the defendants do pay costs of the plaintiffs amounting to Rs. 909 odd. The ordering part of the decree made no mention of the costs of the defendants who had appeared by separate vakalatnama is and filed separate defences; at the bottom of the ordering part, however, the costs of the several defendants were recorded separately each being credited with the full pleader's fee of Rs. 700; the defendants preferred one appeal to this Court and the decree of the first Court was reversed and the plaintiff-respondent was directed to pay to the defendants-appellants the costs of the appeal, the details and amount of which was given, and 'the costs incurred by them (the defendants) in the lower Court' without stating the amount thereof. The defendants applied for the execution of their decree and prayed for the realization of the costs of the High Court and the sum total of the costs named against each defendant in the lower Court. The learned Subordinate Judge has allowed them one pleader's fee for the costs of the lower Court and the defendants decree-holders, appeal and on, their behalf it is contended that the learned Subordinate Judge had no jurisdication to go behind the decree which on the face of it gives separate costs to the several defendants. On the other hand it is contended by the judgment-debtors that the decree of the first Court, having been superseded by the decree of the High Court, is entirely defunct and cannot be referred to and that the learned Subordinate Judge has done nothing more than assessing the costs incurred by the appellants. It will appear from a reference to Section 206 of the Civil
2. Procedure Code (Order XX, Rule 6) that the decree of the first Court 'must state the amount of costs incurred in the suit' and by whom such costs are to be paid. Section 579 of the Civil Procedure Code (Order XLT, Rule 35) says of this decree in appeal that it shall also state the amount of costs incurred in the appeal and by whom such costs and the costs in the suit are to be paid. This latter rule is expressly excluded from application to the High Courts in its appellate jurisdiction (Order XLIX, Rule 3 (6)), but the High Court has not framed any rule of its own for the framing of its appellate decrees. The decree of the High Court speaks of costs incurred by the defendants. Under Section 206 the costs incurred in the suit are to be entered in the decree: this must mean the costs incurred both by the winning party and the losing party and that seems to have been the practice from a long time, see Nubo Kristo Mookerjee v. Parbutty Churn Bhuttacharjee 13 W.R. 23, which does not direct that the details of the costs of the first Court should be incorporated in the appellate decree: it directs the appellate decree to state by whom the cost in the suit are to be paid. As was stated by Mr. Justice Kemp in the case of Mothoora Mohun Roy v. Huree Kishore Roy 18 W.R. 286: 'He (the appellate Court), takes the amount of costs, for granted indeed he could not do otherwise ' and says who is to pay them. The costs 'incurred by the defendants' must be the costs as entered in the superseded decree of the first Court. It may be that this view of the law would work hardship on the respondents but they ought to have seen this when the decree of the High Court was prepared and may not even now be without a remedy. On the record, however, as it stands we must hold that the appellants are entitled to the costs as entered in the decree of the first Court. The appeal is accordingly allowed with costs 3 gold mohurs.