JUDGMENT
Mukharji, J.
1. This application in revision is directed against an order dated 30-11-1970 passed by the Sub-divisional Magistrate, Chapra, allowing the prayer of the opposite party for awarding costs in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter to be referred to as the Code) in which the petitioners were the second party and the opposite party were the first party.
2. As there was an apprehension of breach of the peace between the parties with respect to some land, a proceeding under Section 145 of the Code was drawn up on 30-1-1964 which was finally disposed of by the Sub-divisional Magistrate on 5-10-190(5 in favour of the opposite party, whose possession over the property in dispute was declared. On 30-9-1969, the opposite party filed a petition before the Sub-divisional Magistrate for awarding costs as they were successful in the proceeding under Section 145 of the Code. The learned Sub-divisional Magistrate heard both the parties and then by the impugned order dated 30-11-1970 allowed the petition filed by the opposite party for awarding costs and directed that the costs should include the items permissible under the law for such matter.
3. It is against the aforesaid order passed by the learned Sub-divisional Magistrate that the petitioners have come up to this Court in revision. This case was, at first, placed before a learned Single Judge of this Court who referred it to a Division Bench and that is why the matter has come up before us.
4. Mr. Gupteshwar Prasad, learned counsel appearing on behalf of the petitioners has raised the following points:
(i) The learned Sub-divisional Magistrate has no iurisdiction to pass the impugned order as he had not passed the final order under Section 145 of the Code.
(ii) The impugned order of assessment of the costs should be set aside as it has been passed after unreasonable delay of about three years after the passing of the final order.
5. Regarding the first contention of Mr. Prasad, it appears to have been admitted by the parties that the learned Sub-divisional Magistrate, who passed the impugned order was not the magistrate who had passed the final order under Section 145 of the Code. The argument of Mr. Prasad is that Section 148 (3) of the Code which provides for awarding costs recites that it is only the magistrate passing a decisioa under Section 145 of the Code, who can direct payment of costs to the successful party. He has drawn our attention to the expression “the magistrate passing a decision under Section 145” occurring in Section 148 (3) of the Code and his contention is that the above expression clearly excludes the power of a successor magistrate to pass an order for costs. It is. therefore, urged that the learned Sub-divisional Magistrate, who passed the impugned order regarding costs, although he might have been successor-in-office of the magistrate passing the final order under Section 145 of the Code, had no jurisdiction to award costs to the opposite party.
6. Mr. Binod Kumar Roy, learned Counsel appearing on behalf of the opposite party, however, contends that in the instant case, the learned Sub-divisional Magistrate, who passed the final order under Section 145 of the Code had already indicated therein that the successful party would get the costs which would be determined later on and, as such, the successor-in-office of the magistrate passing the final order under Section 145 of the Code had iurisdiction to pass an order for assessment of costs. In support of his contention, he placed reliance on a Bench decision of this Court in the case of Sarju Prasad Sao v. Ramchandra Singh AIR 1959 Fat 151 : (1959 Cri LJ 506). On a consideration of several decisions, their Lordships in Sarju Sao’s case observed: “A perusal of this sub-section makes it perfectly clear that the direction for one party or the other to pay costs and to pay it in whole or in part or in a certain proportion must be given ‘by the magistrate passing a decision under Section 145’ or the other sections of Chapter 12. There is nothing in this provision to show that even the actual assessment cannot be made by another magistrate.” It is. therefore, well settled that if a magistrate has indicated in the final order passed by him under Section 145 of the Code that the successful party is entitled to get costs, the successor-in-office of the magistrate passing the final order under Section 145 of the Code can assess the costs awarded to the successful party.
7. The learned Counsel for the petitioners has, however, urged that the above decision in Sarju Sao’s case has no application in the instant case because the learned Sub-divisional Magistrate while passing the final order under Section 145 of the Code in the instant case did not direct that the petitioners should pay costs to the opposite party and unless such a direction is given, the successor-in-office of the magistrate passing the final order under Section 145 of the Code cannot assess the costs payable by the petitioners to the opposite party. The contention of the learned Counsel for the petitioners is that in the final order under Section 145 of the Code. no order for the costs in favour of the first party was passed and the only observation by the learned Sub-divisional Magistrate in passing the final order regarding payment of costs is that “the question of costs will be determined later on”. According to Mr. Prasad, the aforesaid observation in the final order does not indicate any direction to the petitioners to pay costs to the opposite party. It is true that there is no express direction regarding payment of costs by the petitioners to the opposite party but it is implied in this final order that the petitioners would have to pay costs to the opposite party. On a perusal of the final order dated 5-10-1966 passed by the learned Sub-divisional Magistrate, it appears that the disputed lands were declared to be in possession of the opposite party, who would remain in possession over the same until evicted therefrom by a decree of a competent Civil Court. The final order further indicates that the petitioners should not interfere with the possession of the opposite partv over the disputed lands and that if they did so, they would be prosecuted under Section 188 of the Indian Penal Code. It can easily be inferred from the aforesaid order that the direction to the petitioners to pay costs to the opposite party is implied in his final order. What was left to be determined in the final order was the amount of costs payable by the petitioners and I do not accept the contention urged on behalf of the petitioners that the question as to whether the petitioners were liable to pay any costs was left to be determined.
8. In these circumstances, I accept the contention of the opposite party that there was a direction in the final order under Section 145 of the Code regarding payment of costs by the petitioners to the opposite party and, as such, there was no legal bar to the successor-in-office of the magistrate passing the final order to make assessment of the costs payable by the petitioners.
9. The next contention of the petitioners is about the enormous delay on the part of the opposite party to apply before the Sub-divisional Magistrate for awarding costs. As already adverted to above, the final order was passed on 5-10-1966. while the opposite party filed an application for awarding costs on 30-9-1969 which would be two years 11 months and 25 days after the passing of the final order. It will appear that there is nothing in the Code of Criminal Procedure or in the Limitation Act which prescribes a period of limitation for assessment of costs under Section 148 of the Code. Our attention has been drawn to the case of Bhojal Sonar v. Nirbun Singh (1894) ILR 21 Cal 609 wherein it was held that a “magistrate had no jurisdiction to assess the costs more than 2 years after the order for costs had been made by his predecessor.” The above decision in Bhojal Sonar’s case was considered in another Bench decision of the Calcutta High Court in the case of Giridhar Chatterjee v. Eba-dullah Naskar (1895) ILR 22 Cal 384 where the final order under Section 145 of the Code was passed on 13-12-1893, The cost was assessed subsequently on 14-3-1894. It was held in Giridhar Chat-terjee’s case:
In the present case the order for costs was made at the time the decision was passed and by the same magistrate who passed the decision. That being so, I think there is no objection to the costs being assessed by a different magistrate, if application, is made to him within a reasonable time.
Beverly, J., who decided Giridhar Chatter-jee’s case was also a party to the decision in Bhojal Sonar’s case and he observed that “the great delay that had been allowed to occur between the order for, and the assessment of, the costs” mainly influenced him to decide Bhojal Sonar’s case. These decisions were no doubt considered in Sarju Prasad Sao’s case refer- red to above wherein it was observed that:
Once, therefore, a direction for payment of costs has been made by the magistrate passing the final order. I do not see why any delay, which is caused in the proceeding for assessment of costs, should preclude the successful party from getting what the magistrate, who decided the case under Section 145 directed that he would get. In the present case, the opposite party filed their application for assessment within a year from the date of the final order in the case under Section 145 and I do not consider that to be an unreasonable delay.
The trend of these decisions is that if there is no unreasonable delay in filing an application by the successful party for awarding costs alter the passing of the final order under Section 145 of the Code, the successor magistrate will be perfectly entitled to assess costs if the direction for payment of costs was already passed in the final order. There does not, however, appear to be any judicial determination of the question as to when a delay would be’held to be reasonable or unreasonable, In Sarju Sao’s case the delay of about one year after the passing of the final order under Section 145 of the Code in filing the application for awarding costs was held to be not unreasonable. In my opinion, the guiding principle in these matters would be to find out if an application for awarding costs was filed beyond the period of limitation, if there was any such period prescribed by law. Under Article 137 of the Limitation Act, 1963, if any application is filed three years after the right to apply accrued and if no period f limitation is provided elsewhere in this Limitation Act, the said application will be barred by time. If for instance, the opposite party had a money claim against the petitioners he could not enforce the same after the period of three years when the said claim became due. The right of the opposite party to get the costs from the petitioners became due by virtue of the final order under Section 145 of the Code and an application for awarding costs should ordinarily be filed within three years from the date on which the opposite party was declared entitled to get the costs. It is true as already adverted to above that no limitation is prescribed in any law for such an application but ordinarily it should be held that when an application for awarding costs is made within three years of the passing of a final order declaring the party entitled to costs the delay in filing the application should be deemed to be not unreasonable.
10. Further in my opinion, considering the nature of the order passed in this case, it should be held in the instant case that there was no unreasonable delay on the part of the opposite party to file an application for awarding costs. The final order passed in this case was to this effect that the question of costs could be determined later on. This means that while passing the final order the magistrate took upon himself the duty of assessing the costs later on and the opposite party was not required to file any application for awarding costs. The aforesaid observation incorporated in the final order is clearly distinguishable from the usual order which a magistrate passes while awarding costs; for example, a magistrate might have observed that the opposite party would get costs of the proceeding from the petitioner or that the petitioner was directed to pay costs of the proceeding to the opposite party. If such an observation had been made in the final order, the opposite party was required to file a regular application praying that the costs be determined.
11. In any view of the matter, there does not appear to be any unreasonable delay on the part of the opposite party to file application before the magistrate for awarding costs after the passing of the final order under Section 145 of the Code. I may, however, like to observe that this matter about payment of costs to the opposite party is pending since long and the learned Magistrate by the impugned order should have assessed the costs payable to the opposite party and should not have left it to be determined again in a subsequent proceeding.
12. In the result, there is no merit in this application, which is accordingly dismissed.
Nagendra Prasad Singh, J.
13. I agree.