Het Ram vs Raja Dutt Prasad Singh on 26 May, 1926

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Allahabad High Court
Het Ram vs Raja Dutt Prasad Singh on 26 May, 1926
Equivalent citations: AIR 1926 All 722


1. The question for determination in this appeal is whether the costs awarded in execution proceedings to the decree-holder are recoverable personally from the judgment-debtor or must be realized, along with the mortgage-money, by sale of the property mortgaged.

2. Briefly the facts are these: A preliminary decree for sale was made on the 4th of March 1910 and the final decree was passed on the 30th of April 1915. In 1917 the decree was put into execution and on the 14th of December 1920, the execution proceedings were struck off as being partially successful. The decree-holder was dissatisfied with this order of striking off of his application and he appealed to this Court. The appeal was successful and this Court awarded to the decree-holder a sum of Rs. 166-8-0 as the costs of appeal. It is this order of costs that is under execution now and the judgment-debtor has come up with the plea that the money should come out of the property mortgaged and not from him personally. The judgment-debtor has been unsuccessful throughout. His case is that under Rule 10, Order 34 of the Civil P.C., the costs awarded against him ought to come out of the property mortgaged and not from him personally, It is perfectly clear to us, as it was to the learned single Judge, against whose judgment this appeal has been filed, that Rule 10 has nothing to do with the costs awarded in execution proceedings. It relates to costs that have been incurred by the mortgagee since the passing of the preliminary decree and before the final decree is made in the case. Order 34 does not deal with the execution of a decree, and the Civil P.C., in which Order 34 finds a place has provided distinct rules for execution of decrees.

3. We think that the appeal has no force and we dismiss it with costs including counsel’s fees in this Court on the higher scale.

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