JIVABAI PITAMBERDAS Vs. TEJA SAMA

JUDGEMENT

(1.) A suit was filed by the present petitioner-plaintiff in the Small Cause Court at Ahmedabad to recover Rs.154 on a promissory note. The judge awarded only Rs. 45-12-0, calculating the rate of interest at nine per cent. An application was made in revision to this Court which held that the rate of interest was insufficient and sent back the case to the lower Court for disposal having regard to the observations made in the judgment, and further directed that the costs in the High Court were to be costs in the cause. Thereupon the learned Judge raised the amount of interest to eighteen per cent and passed a decree in favour of the petitioner for RS. 61-6-0 with proportional costs. These costs would necessarily include the costs incurred in the High Court. The petitioner then filed a Darkhast to recover the decretal amount and costs, including therein the costs in the High Court which came to Rs. 87-13-0. That application was wrong to this extent that the plaintiff could only recover proportional amount of the High Court costs under the decree of the Small Cause Court. The Judge in execution disallowed costs incurred in the High Court on the ground apparently that his predecessor who had passed the decree had refused to allow Rs. 37-13-0.

(2.) We may refer to the decision in Tenipleton V/s. Laurie (1900) I.L.R. 25 Bom. 230, s.c. 2 Bom. L.R. 244, it was held that the words "costs in the cause" in an order made in interlocutory proceeding do not mean that the costs would inevitably follow the event, but that those costs remain to be dealt with by the Court at the hearing, the Judge at the trial having still power to deal with such costs. That is perfectly correct. But when an order has been made in an interlocutory proceeding that costs will be costs in the cause, and a decree is passed in favour of one side or the other for costs, then those costs must be taken as being included in the final order unless the Judge expressly excludes them. The plaintiff, therefore, was entitled to have this item of Rs. 37-13-0 included in the total amount of costs when the calculation was made of the proportionate part which was due to him under the decree.

(3.) We must, therefore, set aside the order made in the Court below, and direct that costs, a proportionate part of which was awarded to the plaintiff, would include the High Court costs. Rule absolute. No order as to costs of this application.