HARDAWARI RAM Vs. VIDYA SAGAR

JUDGEMENT

(1.) The only question for consideration in this second appeal is that of costs. The Appellant brought a suit for pre-emption against the Respondent. The matter was taken to the High Court in second appeal on a preliminary question. The High Court accepted the appeal and remanded the case for retrial on merits. In the matter of costs it ordered that "the other costs including the costs of the first appellate Court will be costs in the cause and shall abide the event". In the end the pre-emption suit of the Appellant was dismissed on appeal by the High Court and the order as to costs by the High Court was that the parties shall bear their own costs throughout. It means that ultimately the successful party in the suit was the Respondent.

(2.) The Respondent then made an application in the executing court for realization of the costs under the earlier order of the High Court in the appeal on the preliminary question. The executing court disallowed his application, but on appeal the learned District Judge has reversed that order and has directed the executing court to proceed in execution for realization of those costs from the Appellant. It is against the appellate order that the Appellant has come in second appeal before this Court.

(3.) Sub-Section 2 of Section 35, Code of Civil Procedure, pro vides that "where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing". The normal rule thus is that the costs follow the event, in other words that the successful party is entitled to costs, unless the Court chooses to disallow costs to it, in which case it has to give reasons for the same in writing. In Reid Hewitt & Co., V/s. Joseph, 1918 AC 717 (A), the House of Lords has held that the expression 'the costs shall follow the event' in the second proviso to Order XLV, Rule 1, which regulates the costs in jury actions, means that the party who on the whole succeeds in the action get the general costs of the action,