Damodar Das And Anr. vs Budh Kuar And Ors. on 4 January, 1888

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Allahabad High Court
Damodar Das And Anr. vs Budh Kuar And Ors. on 4 January, 1888
Equivalent citations: (1888) ILR 10 All 179
Author: Mahmood
Bench: Mahmood


Mahmood, J.

1. After stating the facts and the conclusions of the lower Court, continued: I am unable to accept this view of the law. The decree in the case appears to have been framed in the terms of Sections 86 and 87 of the Transfer of Property Act (IV of 1882) and of Section 94 of the same enactment. It is unnecessary for me to go into the exact effect of these various sections in this case, because the decree of the 9th September 1886, which I am called upon to interpret, appears to me explicit in terms as to costs.

2. It is one thing to say that by reason of the money due upon the bai-bil-wafa mortgage the mortgage has ceased to be redeemable, and it is another thing to say that the order as to costs contained in the decree forms a part and parcel of the money due upon such a mortgage. In a suit for foreclosure, the plaintiff may be claiming neither more nor less than what is really and rightly due upon the mortgage, and the defendant in resisting the suit would, in order to escape costs, be entitled to show that there was no real dispute or that he had been improperly impleaded. But in a case like the present, in which the suit ended in the decree of the 9th September 1886, the defendants appear to have disputed the rights of foreclosure and to have failed in such defence. The order as to costs in this case has been dealt with as a separate part of the decree unaffected by the question whether or not the defendants-mortgagors paid the amount due on the bai-bil-wafa mortgage. Such, I think, is the general effect of the view adopted by the learned Judges of the Calcutta High Court in Butnessur Sem v. Jusoda I. L. R., 14 Cal., 185, and in the present case it seems to me that the decree itself is explicit and the order relating to costs should have been allowed to be executed by the lower Courts.

3. For these reasons I decree the appeal, and as the amount due for costs is a matter relating to accounts, the proper course is to set aside the order of the Lower Appellate Court and remand the ease under Section 562 of the Civil Procedure Code to be dealt with according to law as stated in this judgment. I order accordingly. Costs will abide the result.

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