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Mohunga Ojha and ors. Vs. Ram Bahadur Singh - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.23
AppellantMohunga Ojha and ors.
RespondentRam Bahadur Singh
Excerpt:
costs - mortgage-decree--execution of decree for costs--transfer of property act (iv of 1882), section 90--personal decree for costs. - .....decree the court ought to have passed, but what decree the court has passed. if the court passed a personal decree for costs, then there is no necessity of having recourse to the procedure indicated in section 90. the learned district judge has held that there was a personal liability for these costs imposed by the decree. i see no reason to differ from this, more particularly when it is borne in mind that these were costs not of the suit but of the appeal. therefore, i think the decree of the district judge must be confirmed and this appeal dismissed with costs, hearing fee one gold mohur.
Judgment:

1. The only point on this appeal is whether the decree-holder can realize his decree for costs otherwise than by proceeding under Section 90 of the Transfer of Property Act. In cases of this kind what we have to see is not what decree the Court ought to have passed, but what decree the Court has passed. If the Court passed a personal decree for costs, then there is no necessity of having recourse to the procedure indicated in Section 90. The learned District Judge has held that there was a personal liability for these costs imposed by the decree. I see no reason to differ from this, more particularly when it is borne in mind that these were costs not of the suit but of the appeal. Therefore, I think the decree of the District Judge must be confirmed and this appeal dismissed with costs, hearing fee one gold mohur.


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