CHANNEGOWDA Vs. NAGESHAPPA

JUDGEMENT

(1.) The petitioner brought a suit in O. S. No. 212 of 1944-45 for setting aside an order passed in an earlier miscellaneous case in the Court of the First Munsiff of Mysore who decreed it with costs. On appeal in R. A. No. 84 of 1946-47 by the defendant the Subordinate Judge set aside that decision and dismissed the plaintiff's suit with costs throughout. A second appeal was filed against that decision in S. A. No. 23 of 47-48 and was heard by Venkata Ramaiya and Puttaraj Urs JJ. They were of the opinion that the suit was to be disposed of afresh after passing orders on an application which had been made by the plaintiff for amendment of his plaint and after giving an opportunity to any other creditor to intervene in the suit. They therefore set aside the decrees of the Courts below and remanded the case to the trial Court for disposal. As regards costs they made a direction as follows "the costs of this appeal will abide the result". The suit ultimately ended in favour of the plaintiff and the Munsiff decreed it as prayed for with costs. That decision was confirmed in R. A. 21 of 49-50 by the Subordinate Judge who dismissed the appeal with costs and a second appeal thereon in S. A. 178/50-51 was dismissed without being admitted.

(2.) The plaintiff who found that the costs of the Second Appeal No. 23 of 47-43 had not been included in his favour in the decree of the Munsiff applied under Section 152, Civil P. C. for amendment of the same. That application was rejected by the present Munsiff of Mysore who held that the Munsiff who tried and decided the suit was at liberty to award those costs or not to the plaintiff, and as he had not expressly directed in his judgment that the same should be included in the plaintiff's costs, the plaintiff could not claim that relief through an application for amendment. The plaintiff has come up ID revision.

(3.) For the petitioner, it is contended by Sri M. A. Gopalaswamy Iyengar, his learned Counsel, that the learned Munsiff who tried the suit and passed a decree had awarded costs to the plaintiff; those costs must be deemed to ineau and to include the costs incurred by the plaintiff in the second appeal which were directed by the High Court to abide the result. It was open to the learned Munsiff not to have awarded any costs at all to the plaintiff in which case the present, question would not have arisen but as he has not chosen to do so they must be taken to have been granted to him as a part and parcel of his costs.