JASMAL NAVNITLAL CHIMANLAL Vs. DESAI HARIBHAI ZAVERBHAI
LAWS(GJH)-1963-11-7
HIGH COURT OF GUJARAT
Decided on November 15,1963

JASMAL NAVNITLAL CHIMANLAL Appellant
VERSUS
DESAI HARIBHAI ZAVERBHAI Respondents

JUDGEMENT

V.B.RAJU - (1.) This appeal arises out of execution proceedings in which a warrant under Order 21 Rule 38 C. P. Code was issued for the arrest and detention in civil prison of the judgment-debtor No. 2 Navnitlal Chimanlal the appellant before me. A few facts may be stated in order to understand the controversy in this litigation:- One Chimanlal Motilal filed an appeal in the High Court of Bombay and died during the pendency of the appeal. As he died his heirs namely Sitabai and Navnitlal Chimanlal were made parties to the appeal and their application for stay of the decree appealed against during the pendency of the appeal was dismissed with costs. The execution was sought of the decree which related to costs of this application only. In that execution proceeding the lower Court issued a warrant of arrest against Navnitlal Chimanlal. This order is now challenged in appeal.
(2.) It is contended that Navnitlal is only the legal representative of the deceased appellant and that therefore the decree of costs must be executed against the estate of the deceased Chimanlal Motilal. In support of this contention reliance is placed on sec. 35 C. P. Code and it is contended that the order of costs is passed under this section. Reliance is also placed on Vinayakrao Pandurangrao v. Sharanappa Ramanna 45 Bom.L.R. 1029 and Satyanarayana v. Ramalakshmamma A.I.R. 1959 Andhra Pradesh 662
(3.) Part I of the Civil Procedure Code deals with suit in general. This Part contains sections 9 to 35A. Part IV deals with suits in particular cases. Part V deals with special proceedings. Part VII deals with appeals including appeals from original decrees appeals from appellate decrees and orders. Section 35 deals with costs of and incident to all suits. That section reads as follows :- "(1) Subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force the costs of and incident to all suits shall be in the discretion of the Court and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. (2) Where the Court directs that any costs shall follow the event the Court shall state its reasons in writing." Section 35A C. P. Code deals with compensatory costs in respect of suits or other proceedings including execution proceedings but excluding an appeal. Section 107 C. P. Code deals with powers of appellate Court. Similarly Order 41 Rule 33 C. P. Code deals with powers of the appellate Court. Order 41 is in Schedule I. C. P. Code which is Part of the Code as provided in sec. 121 C. P. Code. It is therefore clear that Part I of the C. P. Code is rerstricted to suits and does not deal with appeals. This Part contains sec. 35 relating to costs. This section therefore provides for an order relating to costs to be made by the Court hearing the suit. As regards the order of costs to be passed by the appellate Court provision is made in section 107 C. P. Code and Order 41 Rule 33 and Order 41 Rule 35 C. P. Code. I therefore reject the contention of the learned counsel for the appellant that sec. 35 C. P. Code applies to the order passed in appeal by the appellate Court regarding the costs. But whatever that may be. even if sec. 35 C. P. Code applies to orders passed by the appellate Court my conclusion would not be different because when an order is passed simpliciter dismissing an application with costs it means that the party which has made the application must pay costs to the party against whom the application has been made. The contention that in cases where one of the parties happens to be a legal representative the order of costs must be interpreted to mean that costs must be paid out of the estate of the deceased person cannot be accepted. The order which merely says application dismissed with costs means that the party which has made the application must pay the costs to the party against whom the application is made. We have therefore to see who is the party to the application. Under Order 22 C. P. Code when one of the parties dies and the right to sue or the right to appeal survives the Court on an application made in that behalf should cause the legal representative of the deceased to be made a party. It is provided in Order 22 Rule 1 C. P. Code that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Order 22 Rule 3 C. P. Code reads as follows:- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right co sue survives the Court on an application made in that behalf shall cause the legal representative of the decease I plaintiff to be made a party and shall proceed with the suit... .. .. ... Therefore when a party dies action should be taken under this Order if the right of appeal survives to the legal representative of the deceased in which case the legal representative is made a party. He is not added as a party as a deceased person no longer remains a party because by reason of his death. Another person is made a party to the suit or appeal because the right to sue or the right to appeal survives to him. He becomes a party in place of the deceased. It may be that he may be a party because he happens to be the legal representative of the deceased. But that reason is immaterial. The fact is that the party to the appeal is somebody else and not the deceased person. When an order for costs is passed in appeal the party has to pay the costs. In a case where one of the parties dies and another person is made a party the latter becomes a party and the former ceases to be a party. The latter is liable to pay the costs and not the estate of the deceased. If the heir of the deceased does not want to run the risk of paying the costs he should abandon the appeal and should not make an application to be made a party to the appeal. Once he makes such an application he becomes a party to the appeal with all the rights of such a party and with all the obligations of such a party. Before Chimanlals death the title of the appeal read thus:- "Chimanlal Motilal v. .. .. .. .. .. .. .. .. .." ;


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