Provided, &c. Similarly by Order LV of the Rules of the Supreme Court it is:-" Provided that where any action or issue is tried by a jury, the costs shall follow the event, unless upon application made at the trial, for good cause shown the judge before whom such action or issue is tried, or the court, shall otherwise order." I have italicized the words "for good cause shown" in order to draw attention to the fact that in England the losing party who would deprive the winning party of his primâ facie right to costs, lies under the obligation of making out the existence of special circumstances; and I imagine that the rule should hold good in India also. See the quotation above from Smiths C. P., last part.

The following note is in Lely and Foulkes' book, p. 249:-In the Common Law Courts costs were as a general rule given to the successful party by virtue of a series of statutes commencing with the Statute of Gloucester (6 Edw. I, c. 1), which first gave costs eo nomine to a plaintiff recovering damages. (See Gray on Costs.) Before the Statute of Gloucester, costs, though not recoverable eo nomine, were as a matter of fact included in the damages given by the jury. The rule of the Civil Law was "victus victori in expensis condemnandus est." In the courts of equity costs have always been in the discretion of the court, which however uniformly considered that the successful party had a primâ facie claim to them, and in depriving him of them is said to have proceeded on certain fixed principles. (See Daniell's Ch. Pr. vol. 2, ch. xxxiii; Morgan and Davey on Costs.)

Costs may be set off against sum admitted or found to be due.

221. The Court may direct that the costs payable to one party by another shall be set off against a sum which is admitted or is found in the suit to be due from the former to the latter,

but such direction shall not affect the lien upon Saving of pleader's the amount decreed of any pleader in respect of the costs payable to him under the decree.

lien.

Compare Sec. 111, which deals with "set-off" and "pleaders lien." And see Sec. 247 as to cross-claims under the same decree.

In the suit.-Not in another.

The lien upon the amount.-See 1 Smiths C. P., 167: "If a sum is declared due by decree or judgment, a solicitor may give

notice to the opposite party, not to pay the money until his costs are satisfied. And if after notice such party pays it, he will be liable to pay over again to the solicitor the amount of his lien. The solicitor may also make his lien upon the fund in Court effectual by obtaining a stop order where the circumstances of the case justify such a proceeding. A solicitor's lien on costs ordered to be paid to his client by the adverse party is not affected by the client releasing the adverse party from such payment; nor is the solicitors lien affected by the circumstance of the costs or fund being made payable to the client. A solicitor does not deprive himself of his lien upon the fund recovered by attaching his client for non-payment of his

costs."

Interest on costs. Payment of costs out of subject-matter.

222. The Court may give interest on costs at any rate not exceeding six per cent. per annum and may direct that costs, with or without interest, be paid out of or charged upon the subject-matter of the suit.

CHAPTER XIX.

OF THE EXECUTION OF DECREES.

Execution. The word 'execute,' from the Latin ex-seq, follow to the end, denotes the continuation or accomplishment of the following or pursuing ones right: the bringing the suit' to its desired and legitimate end, actual relief against injury. See the note to 'suits,' p. 8.

Decrees. What is 'executed' is the decree not the judgment. There are various modes of execution. In each case the form and nature of the decree will determine the mode in which it should be executed; and in drafting a decree the judge should always guard against possible difficulties in giving effect to it.

A.-Of the Court by which Decrees may be executed.

Court by which decree may be executed.

223. A decree may be executed either by the Court which passed it or by the Court to which it is sent for execution under the provisions hereinafter

contained.

The Court which passed a decree may, on the application of the decreeholder, send it for execution to another Court,

(a) if the person against whom the decree is passed actually and volun tarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree direct the sale of immovable property situate outside the district within which the Court which passed it is situate, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

The Court which passed a decree may of its own motion send it for execu. tion to any Court subordinate thereto.

The Court to which a decree is sent under this section for execution shall certify to the Court which passed it, the fact of such execution, or where the former Court fails to execute the same, the circumstances attending such failure.

If the decree has been passed in a case cognizable by a Court of Small Causes and the Court which passed it wishes it to be executed in Calcutta, Madras, Bombay or Rangoon, such Court may send to the local Court of Small Causes the copies and certificate respectively mentioned in clauses (a), (b) and (c) of Sec. 224; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.

If the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But if the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed.

The provisions of this section are quite new. the terms used in it, see the notes to Sec. 16.

For some of

The Court.-Process of execution against the person or personal property of a judgment-debtor may be issued on the decree of a Court of Small Causes by a court in another district. Before issuing such process of execution, the court receiving the decree is bound to see that the provisions in (old) Secs. 286 and 287 have been strictly complied with. The documents required to be transmitted for the purpose of obtaining execution are a copy of the decree and a certificate of any sum remaining due under it together with a copy of any order for execution that may have been passed. P. Venkatasubiya v. K. Sivaramappa, 4 H. C. R., 331. This section applies to Courts of Small Causes, notwithstanding Secs. 19 and 20 of Act XI of 1865. Anon. case, 9 Suth. W. R., 175.

For any other reason.-A court cannot send its decree for execution to another court merely to create the right of set-off. Maharajah of Burdwan v. Sreenarain Mitter, 5 Wym. Rep., 222.

Procedure when

Court desires that its

224. The Court sending a decree for execution own decree shall be under Sec. 223 shall send therewith executed by another

Court.

(a) a copy of the decree;

(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and

(c) a copy of any order for the execution of the decree, and if no such order has been made, a certificate to that effect.

225. The Court to which a decree is so sent shall cause such copies and certificate to be filed, without any further proof of the decree or order for execution, or of the copies thereof, or of the jurisdiction of the Court which passed it, unless the former Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.

Court receiving copies of decree, &c., to file same without proof.

Execution of decree

or order by Court to which it is sent.

227. If the Court Execution by High Court, of decree transmitted by other Court.

Appeal from orders forexecution of decrees of other Courts.

226. When such copies are so filed, the decree or order may, if the Court to which it is sent be the District Court, be executed by such Court or by any subordinate Court which it directs to execute the same. to which the decree is sent for execution be a High the same manner as if it had been made by such Court Court, the decree shall be executed by such Court in in the exercise of its ordinary original civil jurisdic

tion.

228. The Court executing a decree sent to it under this chapter shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its orders in executing such decree shall be subject to the same rules in respect of appeal, as if the decree had been passed by itself.

229. A decree of

Decrees of Courts established by Government of India in Native States.

230. When the Application for exe

cution.

any Court established by the authority of the Governor-General in Council in the territories of any Native Prince or State in India, which cannot be executed within the jurisdiction of the Court by which it was made, may be executed in manner herein provided within the jurisdiction of any Court in British India.

B.-Of Application for Execution.

holder of a decree desires to enforce it, he shall apply to the Court which passed the decree or to the officer, if any, appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to such Court or to the proper officer thereof.

another Court, then to

The Court may in its discretion refuse execution at the same time against the person and property of the judgment-debtor.

Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no

subsequent application to execute the same decree shall be granted unless the Court is satisfied that on the last preceding application due diligence was used to procure complete satisfaction of the decree; and the order of the Court granting any such subsequent application shall be conclusive evidence that due diligence was used to procure such satisfaction.

And no such subsequent application shall be granted after the expiration of twelve years from any of the following dates (namely)—

(a) the date of the decree sought to be enforced, or of the decree (if any) on appeal affirming the same, or

(b) where the decree or any subsequent order directs the payment of money or the delivery of property by instalments,-the date of the default in paying or delivering the instalment in respect of which the applicant seeks to enforce the decree.

Nothing in this section shall prevent the Court from granting an application for execution of a decree after the expiration of the said term of twelve years, where the judgment-debtor has by fraud or force prevented the execution of the decree at some time within twelve years immediately before the date of the application.

Notwithstanding anything herein contained, proceedings may be taken to enforce any decree within three years after the passing of this Code, unless when the period prescribed for taking such proceedings by the law in force immediately before the passing of this Code shall have expired before the completion of the said three years.

The changes here made are very important, and the wording of the section needs careful study, particularly that part of it which deals with subsequent applications made when the preceding application has been granted.

May in its discretion refuse.-In England :-" The writs of 'fi. fa., ca. sa.,' and 'elegit,' may all be sued out at the same time, or several of each issued at the same time into several counties, since it is not necessary to enter them on, or even to carry in the roll, until one has been executed, and it becomes necessary to issue another. But when any one has been executed nothing can be done on another, even against another defendant, till the first has been returned, although from the execution having been voluntarily withdrawn, nothing has been realized. When returned, supposing it were a fi. fa., and it appear by the return that part only has been realized, new writs of either kind may issue for the residue. The rule does not apply where nothing could be realized under the first, as where the officer found the landlord in possession for an amount greater than the value of the goods; here, though he may have entered and kept possession some days, he may withdraw, and execute a ca. sa. without any return of the fi. fa.; and where the defendant told the officer that he had sold the goods to cheat the