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The words from “if” to “plaintiff” in the first paragraph have been substituted, and the whole of the last paragraph has been added by Act Vii of 1888, section 7. As to previous law, see Tiluck Chand vs. Soudaminee Dassee, 25 W. R., 275.
217. Certified copies of the judgment and decree shall Certified copies of be furnished to the parties on application judgment and decree to be furnished.
to the Court, and at their expense. Act VIII of 1859, section 198. This section applies to H. C. and P.S. C. C.
The parties are entitled to receive copies of the judgment, and not merely translations of them-Vajivan vs. Aji Daji, 1 Bom., 165. The practice of furnishing copies free of cost, on supplying the
proper stamp, has been set aside. See the case of Nil Monee Singh vs. Chinibash, 20 W. R., 405.
OF Costs. 218. When disposing of any application under this Code,
the Court may give to either party the costs of Costs of applications.
such application, or may reserve the consideration of such costs for any future stage of the proceedings.
Order.-An order under this section is not a decree-Shanks vs. The Secretary of State, I. L. R., 12 Mad., 120. When one of the parties to a partition pays all the costs, and the others do not pay their respective shares, the party paying cannot execute without an order for payment being made by the Court-Brojolall vs. Mohendronath, I. L. R., 18 Cal., 199.
When costs of an interlocutory proceeding have been disposed of, the award of general costs of the suit does not interfere with that interlocutory order-Radha vs. Ram Purmeswar, 10 Ind. App., 113; I. L. R., 9 Cal., 797.
Appeal.-An appeal for costs only lies in regard to appealable orders where a matter of principle is involved - The Secretary of State vs. Marjum Hosein, I. L. R., 11 Cal., 359; Moshingan vs. Mozari, I. L. R., 12 Cal., 271; Bunwari Lall vs. Chowdhary, I. L. R., 12 Cal., 179. So if the order is appealable as affecting the jurisdiction of the Court or the merits of the case, an appeal will lie from that part of the order which relates to costs -Balkissen Dass vs. Luchmeeput, I, L. R., 8 Cal., 91; and see Kamat vs. Kamat, I. L. R., 8 Bom., 368; Caivalho vs. Nurbibi, I. L. R., 3 Bom., 202; even though that portion of the appeal not referring to costs has been abandoned at the hearing
- Vasudev vs. Bhuvan, I. L. R., 16 Bom., 241. See Huxley vs. The West London Ry., 17 Q. B. D., 373; 14 App. Cas., 26. Under the law in force previously 'the question of costs' should, in Bengal and Bombay, be raised in regular appeal, sin no special appeal would lie, unless the order made was illegal-Futeek Parooee vs. Mohender Nath, I. L. R., 1 Cal., 385 ; Desaji Lakhmaji vs. Bhavanidas, 8 Bom., 100; but it was otherwise in Madras-Sri Duntuluri Narayana Gajapathi Raznoaru vs. Saruppa Raza, 3 Mad., 113; and see Mussamut Keemee Baee vs. Luchmun Dass Nurain Dass, 5 W. R., P. C., 59.
Suit. -No suit will lie for costs where the Court has power to grant them in the original proceeding--Mohram Dass vs. Ajudhia, I. L. R., 8 Alla., 452.
Defendant cannot sue plaintiff for costs incurred in successfully resisting a claim. It is only when the costs are made part of the order that a party can enforce their payment, and then only in execution-Referred Case, 3 Mad., 341.
Lien of Solicitor.-See Deb Kabai vs. Jeffersin, I. L. R., 10 Bom., 248.
Heirs.-A solicitor cannot enforce under a rule of Court his taxed costs against an heir or legal representative-Assur vs. Ruttonbai, I. L. R., 15 Bom., 152. 219. The judgment shall direct by whom the costs of
each party are to be paid, whether by himJudgment to direct by whom costs' to be self or by any other party to the suit, and paid.
whether in whole or in what part or proportion.
Act VIII of 1859, section 187. This section applies to H. C.
Witness.-Witnesses cannot get cost of appearing by counsel-In re Brown & Co., I. L. R., 14 Cal., 219.
Parties.-A Court is bound to decide by which of the parties costs shall be borne ; it cannot declara that they shall be borne
by the unsuccessful party in a suit to be subsequently instituted–Kashee Chunder vs. Bungshee Buddun, 23 W. R., 89. Only parties can be made liable under the Code-Jointee Chunder vs. Anundo Lall, 14 W. R., 0. A., 1; but this is the only limitation, and though a defendant should not ordinarily be held liable for his co-defendant's costs, yet if he has colluded with the plaintiff and induced him to bring the suit, he may not only be made to pay his co-defendant's cost, but refused his own-Bhyroo Raroot vs. Anooroodeb Deo, Marsh., 608 ; Ram Chunder Mitter vs. Kisto Kaminee Dassee, 10 W. R., 194. In a suit brought against several parties, some admitted the debt and partnerships, but others denied them : Held, the defendants who disputed the claim, should pay the costs of those who admitted it-Juggut Chunder vs. Roop Chund, I. L. R., 6 Cal., 811.
Representative.-An estate, and not the manager thereof, is liable for the costs of a suit instituted in perfect good faith for the benefit of the
property-Ram Kishore Acharjee vs. Luckhee Dabia, 1 W. R., Mis., 1 ; contra-Pooley's Trustee vs. Whetham, 28 C. D., 38, p. 41; but where the widow of a deceased proprietor applied for a certificate under Act XL of 1858, and asserted she was in possession of all his property, and mentioned as among her property a certain pergunnah, it was held that she must pay the costs of a party who could object to her taking out a certificate for that pergunnah, although she had ‘not asked for a certificate for it-Feda Hossein vs. Khajoorunnissa, 9 W. R., 459. A suit for contribution will lie where one has paid more than his share of costs on a joint decree-Kisto Coomar vs. Anund Moyee, 7 W. R., 300.
Trustee.-An order in regard to trustee's costs, charges and expenses not being costs of suit, is not an order under this section.-In re Chennel, 8 C. D., 492. See ex parte Wainright, 19 C. D., 140 ; see p. 218, post.
Redemption.-Defendant in a redemption suit should get his costs, unless he has refused the amount tendered, or misconducted himself in the course of the suit--Dhondo vs. Balkrishna, I. L. R., 8 Bom., 190, as between attorney and client-obhoy Churn vs. Mullick, 8 C. L. R., 437.
High Court.-When an action is brought on contract in the High Court, and the amount decreed is within the jurisdiction of the Small Cause Court, the plaintiff cannot get costs unless the Judge trying the case certifies that it was fit to be brought in the High Court-Sabapati vs. Narranaiyan, 1 Mad., 115; but it is otherwise if the suit is for interest and principal due on a mortgage, for in such a case the Small Cause Court has no jurisdiction-Mirtunjoy Dutt vs. Cameenee Dassee, 1 Ind. Jur., N. S., 95. On this point, see also Chunder Kant vs. Judoo Nath, 1 C. L. R., 470.
220. The Court shall have full power to give and Power of Court as apportion costs of every application and suit to costs.
in any manner it thinks fit, and the fact that the Court has no jurisdiction to try the case is no bar to the exercise of such power :
Provided that, if the Court directs that the costs of any application or suit shall not follow the event, the Court shall state its reasons in writing.
Every order relating to costs made under this Code and not forming part of a decree may be executed as if it were a decree for money.
Act VIII of 1859, section 187. This section applies to H. C. and P. S. C. C.
Full Power to Give.- Where under a mortgage security the mortgagor is not personally liable for the principal and interest, he may still be made personally liable. for costs.-Rutnessur Sein vs. Jusoda, I. L. R., 14 Cal., 184 ; Damodar Das vs. Budh,. I. L. R., 10 Alla., 179.
Entered in Decree.— The decree must direct by whom and in what proportion the costs should be paid. Any omission to do so is not a mere clerical error and must be rectified by review--Ram Sahoy vs. Rookhoo, 15 W. R., 414, provided the applicant has not delayed too long, say 3 years-Oodoy Tara vs. Jonab Ali, 17 W. R., 358 ; or the judgment has been appealed against, and a final decree passed by the superior Court-Bilao Singh vs. Salig Ram Singh, S. D., N. W., 1861, p. 460. Execution.
No objection as to the amount of costs allowed in the suit can be raised in execution of decree--Hureenath Banerjee vs. Doybo Chunder, 5 W.R., Mis., 4. Interest on costs cannot be allowed in execution, unless it is inserted in the decree-Forester vs. The Secretary of State, I. L. R., 3 Cal., 161.
General Rule. - The general rule is that, if a plaintiff recovers a less amount than he claimed in his plaint, his costs should be apportioned according to the amount recovered, and not to the sum claimed - Mudhun Mohun vs. Gokul, 10 Moore, 563 ; that is to say, that costs follow the result of the case, unless there are equitable reasons to the contrary, so that where the plaintiff has failed in part and sncceeded in part, the costs are apportioned so as to give to each party the costs applicable to the matter upon which he has succeeded-Tarachand Mookerjee vs. Jadoonath, Marsh., 79; but this is not an invariable rule; and if a plaintiff mainly succeeds in his claim and it is an honest one, he may be allowed full costs -Sheo Dyal Tewaree vs. Bishonath, 9 W. R., 61 ; but see Heera Ram vs. Ashruf Ali, 9 W. R., 103.
Follow the Event.—This means follow the result of the decision-Garnet vs. Bradley, 3 App. Cas., 944; See Lund vs. Campbell, 14 Q. B. D., 821 ; Hawke vs. Brear, 14 Q: B. D., 841, and if the act of the defendant is wrong and there is no fund out of which the plaintiff can receive costs the defendant should not be excused from payment -Upmann vs. Forester, 24 C. D., 231.
A suit was dismissed in the first Court as beyond jurisdiction. On appeal this decision was reversed and the plaint returned. Held, defendant was entitled to his costs in appeal to the High Court on that ground-Moshigun vs. Mozari, I L. R., 12 Cal., 271. If the appeal is dismissed it is sufficient to deprive the respondent of his costs that the appeal was dismissed on a preliminary objection of which the appellant had not notice -Imtiaz Bano vs. Latafatunnissa, I. L. R., 11 Alla., 328.
Costs Given.- A person wrongly made a party-Bishen Dayal vs. The Bank of Upper India, I. L. R., 13 Alla., p. 295, or respondent should get his costs-Sheo Pershad vs. Lailjee, S. D., N. W., 1863, p. 1; and so should a party who has not opposed plaintiff's claim-Government vs. Sanoola, 3 W. R., 23, or disclaims --- Shunt Bhuksh vs. Lalla Nund, 11 W. R., 481, or has no interest in the suit, and has unnecessarily been made a party Collector of Dacca vs. Kumala Kant Mookerjee, 2 W. R., 33, and would have suffered some injury if he had not appeared-Collector of 24-Pergunnahs vs. Wilkinson, 12 W. R., Hl. And if a person is entitled to costs, he should not lose them on account of the mode in which counsel argues the case, or because counsel may claim more than he is entitled to--Moet vs. Pickering, 8 C. D., 372.
No Costs.—But a party will not get costs if he has induced plaintiff to sue himLalla Bhuguan Doss vs. Syed Akbar, 1 Ind. Jur., N. S., 390, or does not raise the defence on which he succeeds till special appeal-Nobeen Kishen vs., Shib Pershad, 7 W. R., 490 ; and see Aukhil Chunder vs. Moheenee Mohun, 4 C. L. R., 491.
Where a party has acted with malice and malevolence-Kalee Pershad vs. Ram Pershad, 18 W. R., 14, as distinguished from mere hardness in exercising a civil rightMuddun vs. Allopudeen, S.D., N. W., 1861, p. 569, or the defence is false and unscrupulous, costs will not be allowed-Ram Gopal vs. Bhoobun Mohun, Coryton, 126. And in a suit where plaintiff, after prolonged and harassing litigation, only obtained nominal damages, it was declared that the rule of proportion should not be followed--Moseehun vs. Munoorun, 24 W. R., 69.
Plaintiff gets no costs where the defendant does not possess sufficient moveable property to satisfy a Small Cause Court decree, and plaintiff failing to execute in full, sues in the High Court--Mohendra Nath Ash vs. Beedebodun Dutt, 1 Ind. Jur., N. S., 220; and a defendant has been refused costs when plaintiff withdrew his suit, without sanction before being called on for trial-Brass vs. Tiruven Gada Pillai, 1 Mad., 247, but now see section 373.
Salvage.- Costs in case of excessive bail—In the matter of the Ship “Champion I. L. R., 17 Cal., 83, p. 114.
Set-Off.-As to costs in cases of set-off under section 111, ante, see Stroke vs. Taylor, 5 Q. B. D., 586 ; Baines vs. Bromley, 6 Q. B. D., 691 ; Brijanath Dass vs. Jaggarnath Dass, I. L. R., 4 Cal., 742 ; Ishri vs. Gopal, I. L. R., 6 Alla., 351.
Payment into Court. -On the Original Side of the High Court, when defendant pays into, and plaintiff draws money out of, Court, the latter is entitled to costs incurred before the money was paid in-Ardesir Limji vs. Sorabji, 1 Bom., 70.
Administration. Where an estate or fund is administered by a Court, the costs of all the necessary parties are a first charge-Ford vs. Lord Chesterfield, 21 Beav., 426.
See as to costs of appearing in Chambers in an administration suit-Sharp vs. Lush, 10 O. D., 468.
Administrator-General.- Amir Jan vs. Rivett-Carnac, I. L. R., 10 Bom., 350.
Divorce.-As to the person who should bear the costs in suits for judicial separation and divorce cases-See Horole vs. Fowle, I, L. R., 4 Cal., 260 (but see Natali vs. Natali, O’K., CIV. P.
1. L. R., 9 Mad., 127); Proby vs. Proby, I. L. R., 5 Cal., 357 ; Thomson vs. Thomson, I. L. R., 14 Cal., 580.
Trustees, &c.- Trustees, executors and administrators are entitled to their costs out of, or charged upon the estate except in cases of vexatious conduct, or where by their neglect or misconduct, they have occasioned the institution of the suit-Simpson vs. Bathurst, L. R., 5 Ch. App., 193 ; In re Chennell, 8 C. D., 492 ; Ex-parte Wainright, 19 C. D., 140.
Construction of Will.-In suits to determine the construction of a will, when a reasonable doubt exists as to the meaning of the bequest or devise, costs are usually paid out of the residuary personal estate-- Wilkinson vs. Lindgren, L. R., 5 Ch. App., 570 ; Kristomoney vs. Noreniro Krishna, 16 Ind. App., 29, p. 43; Taracharn vs. Suresh Chunder, 16 Ind. App., 166, p. 174.
Consent Order.- Effect of, on costs-Malchus vs. Broughton, I, L. R., 13 Cal., 193.
Separate Costs.- Where the interests of the parties are separate and distinct, separate costs should be allowed to each ---Kossella Koer vs Beharee, 12 W. R., 70 ; thus, where one defendant pleaded that he had nothing to do with the property sued for and proved it conducting his defence by a separate pleader, he was allowed his costs-Ram Chunder vs. Mutty Lall, 11 W. R., 19; and if the defendants are zemindar and patnidar, and the snit is for possession of land-Gobind Nath vs. Luchmee Koomaree, 11 W. R., 36, or the defendants have been charged with jointly misappropriating property- Nilkanth Surmah vs. Soosela, 6 W. R., 324, or in any case if they represent different interests and live so far from each other that it could not be reasonably expected that they would employ the same pleader, separate costs should be allowed-Choonee Laul vs. Gopaul Chunder, S. D., N. W., 1859, p. 1.
Not Given.—But where the defence is common to all-Francisco De Assis vs. Doss Anjos, 17 W. R., 188, or their interests are the same as if they are joint-holders - Brindabun Chunder vs. Ram Coomar, 1 W. R., 139, or if they are representatives of a mortgageeShah Mukhun Lall vs. Kishen Singh, 12 Moore, 157 ; but see Bhup Singh vs. Zainulabdin, I. L. R., 9 Alla., 205, or if they are members of the same family, living in the same p give the same answer, and the suit is for damages on account of their joint act-Kassee Nauth Roy vs. Hullodhur, 2 W. R., 60, or they are co-sharers suing separately on a joint cause of action, and the actions were from the first tried together--Pearee Mohun vs. Mirza Gazee, 11 W. R., 270, or if from any cause defendants file separate defences unnecessarily, only one set of costs should be awarded-Juggu Lall vs. Biharee Lall, S. D., N. W., 1859, p. 349.
In Appeal.—When an Appellate Court decrees an appeal and give costs of its own Court, the costs of the first Court should be included in the decree--Shaikh Mahomed vs. Ram Kant, 16 W. R., 266, and a decree for “ usual costs and interest all costs which the successful party has incurred from the commencement of the suit until the date of the final decree with interest at (now) 6 per cent. from the date of decree, Broughton vs. Perlad Sein, 19 W. R., 152 ; Madhub Lal vs. Noyan Ghose, 6 C. L. R., 231 ; and “The respondent should pay to the appellants the costs incurred by them in the Lower Court" in a decretal order mean the costs specified in the decree appealed against as the costs incurred by the appellants-Ram Chunder Sen vs. Koomar Durga Nath Roy, 1 Shome, 143. Where a decree under which costs have been recovered is set aside in appeal an express order is not needed for a refund of the costs with interest-Dorab Ally vs. Abdool Azeez, I. L. R., 4 Cal., 229 ; Rodger vs. Comptoir d' Escompte de Paris, L. R., 3 P. C., 465; Forester vs. The Secretary of State, 4 Ind. App., 137.
Limitation. -An order for costs made in the High Court on appeal is barred after three years-Hurbuns Lall vs. Sheo Narain Singh, 21 W. R., 391.
Privy Council.–Though costs are in the discretion of the Court, the rule of the Privy Council is that a successful appellant is, as a rule, entitled to his costs-In re Wilson, 1 C. D., 113; Kali Krishna vs. The Secretary of State, 15 Ind. App., 186.
No Costs.-Costs are not allowed where the parties contend for much more than they are entitled-Ram Koomar vs. Kali Krishna, 13 Ind. App., 122 ; or the appellant has failed in part of his appeal-Rajrup Koer vs. Ablul Hossein, I. L. R., 6 Cal., 394 ; or has used forged documents--Coomari vs. Manroop, 13 Ind. App., 31 ; nor are the costs incurred by the introduction of irrelevant matter given --Bishenmun Singh vs. Lanıl Mortgage Bank, 12 Ind. App., 7; Rajah of Pittapur vs. Sri Rajah Row, 12 Ind. App., 22; nor should the respondent if he has been guilty of fraud get costs-Bhubaneshwari vs. Nilkamul, 12 Ind. App., 137 ; I. L. R., 12 Cal., 19. And where on appeal the decision appealed from was upheld on ditferent grounds from those relied on by the Lower Court, the appeal was dismissed without costs-Fischer vs. Kamola Naicker, 8 Moore, 170. See also Mirtoonjoy Chucherbutty vs. Cochrane, 10 Moore, 229.
Costs ; How Calculated.-Among the items that have been allowed are the salary of one accountant, or even two, in cases in which the Court would appoint a Commissioner to examine accounts - Macnair vs. Hogy, 2 Hyde, 89 ; expenses and losses arising from the attachment of the defendant's property when the suit is dismissed--Sewa Ram vs. Landy, S. D., N. W., 1856, p: 514 ; and where a case was remanded from the High Court with orders allowing plaintiff to amend on payment of all costs of the two first
hearings, it was held
that this order included the stamp for the plaint-Madhab Chunder vs. Ram Lochan, 14 W. R. 143.
Pleader's Fees.- Pleader's fees must be calculated according to the rules, irrespective of any private arrangement between pleader and client-Umritonath Jha vs. Roghoonath, 6 W. R., Mis., 35.
Other Costs.-The amount is calculated on what the plaintiff claims from the defendant-Rasheenath Sein vs. Chunder Monee, 9 W. R., 289 ; and when a suit contains several distinct claims against separate defendants, the amount of costs to be allowed to each depends on the claims against him-Rooddur Narain Roy vs. Coomar Narain, 13 w. R., 320 ; but the rules do not provide for the case of persons having separate interests made defendants in order to perfect their title and consent to a decree, and the Court should only allow them a sum sufficient to cover the costs of their appearance -- Ramputty Koer vs. Kalee Churn Singh, 14 W. R., 91. Where there is no rule as to costs and no express agreement, a pleader is only entitled to reasonable remuneration for his work and labour-Mussamut Ameeroonissa vs. Chapman, 6 W. R., 108.
Plaintiff should not be saddled with the costs of three pleaders if two are sufficientSukeena Bibee vs. Usud Ali, S. D., N. W.,
333. 221. The Court may direct that the costs payable to Costs may be set-off
one party by another shall be set-off against against sum admitted a sum which is admitted or is found in the or found to be due.
suit to be due from the former to the latter. This section applies to H. C. and P.S. C. C.
If, in consequence of any defect in the judgment or negligence on the part of the appellant in not getting the decree properly drawn up, costs have not been allowed, no set-off can be claimed in execution-Huro Pershad vs. Foolkishoree Dossee, 16 W. R., 308.
In a pre-emption suit plaintiff deposited the purchase-money less the costs decreed to him, and asked for possession. It was granted-Ishri vs. Gopal Saran, I. L. R., 6 Alla., 351. See note on section 111, ante. 222. The Court may give interest on costs at any rate
not exceeding six per cent. per annum, and Interest on costs.
Payment of costs out may direct that costs, with or without inof subject-matter.
terést, be paid out of, or charged upon, the subject-matter of the suit.
This section applies to H. C. and P. S. C. C.
The same rule applies to interest on costs as to interest on mesne profits, and it cannot be given in execution unless expressly granted by the decree-Pillai vs. Pillai, 24 W. R., 193 ; 15 B. L. R., 83; 2 Ind. App., 219 ; even if the decree be a decree of the Privy Council-Bhoza Rughbur Singh vs. Bhoza Roy Singh, 3 Alla., 319; Forester vs. The Secretary of State, 4 Ind. App., 137. Interest on costs after decree may be the subject of a separate suit-Pillai vs. Pillai, 2 Ind. App., 219, supra ; but if it is allowed by way of compromise on execution, the Appellate Court will not interfere-Sett Gokul Doss vs. Murli, I. L. R., 3 Cal., 602 ; see also Forester vs. The Secretary of State, 4 Ind. App., 137.
OF THE EXECUTION OF DECREES. Application of this Chapter.-See the scope of this Chapter discussed-In re Ratansi Kalianji, I. L. R., 2 Bom., 148. See also sections 375A, 647 and 649, infra.*
A.–Of the Court by which Decrees may be executed.
223. A decree may be executed either by the Court Court by which de- which passed it or by the Court to which cree may be executed.
it is sent for execution under the provisions hereinafter contained.