Kuber Nath Srivastava, J. - (1.) This is an appeal against the judgment and order passed by the Distt. Judge, Banda dismissing an appeal against the judgment and order of Munsif, Banda. The facts giving rise to this appeal are as follows: The suit was filed by Smt. Shyam Kali against the appellant Smt. Shyam Kishori Devi. That suit was for demolition of an unauthorized construction. It was decreed by the trial court. On appeal, the learned lower appellate court allowed the appeal and remanded the case for retrial ordering that the costs of the appeal shall abide the result of the trial court. After remand, the learned Munsif dismissed the suit. The appellants made an application for execution of the costs which she incurred in the learned lower appellate court alleging that after remand, the suit was dismissed and as the costs of the learned lower appellate court was to follow the result of the suit and as the suit was dismissed the appellant was entitled to the costs. This application was dismissed. The appellant filed an appeal before the Distt. Judge. This appeal was also dismissed. Being dissatisfied, the appellant has filed this appeal.
(2.) The learned counsel for the appellants contended that the words used by the learned Civil Judge who remanded the appeal were "shall abide by the result" and the use of the word "by" clearly indicated that it was to conform or adhere to the result of the suit. The use of the word "by" after the word "abide" is only made when one speaks about a promise and a contract and then the word "abide by" means adhered or conform by the contract or by the promise. Where a thing is to follow, then the word "by" is not used after the word "abide" and therefore, the word "by" was wrongly used by Sri Akhtar Husain, Civil Judge who remanded the case. In this view of the matter, the above argument has, therefore, no force in it.
(3.) The learned counsel for the appellants relied on the Madras High Court decision in the case of Mulraju Lakshmi Venkayamma Rao Garu v/s. Meka Venkataramiah Appa Rao Bahadur Garu ( : AIR 1919 Mad. 795). The other case relied upon by the appellant was Raja Balabhadra Singh Deb v/s. Raja Radha Shyam Singh Deb ( : XVI IC 381). In both the cases, after remand the cases were withdrawn which resulted in dismissal of the suit but in view of the facts of the case, it was held that the trial court had no discretion other than to allow the costs incurred by the appellant in prosecuting the appeal which was remanded. The facts of both the cases were quite different from the facts of the present case. The words "abide the result" means that the costs is to await till the decision is given in the case. Had the words been that "the costs shall abide and follow the result" the matter would have been quite different, and therefore, the trial court would have no discretion left but to allow the costs if the decision was in favour of the appellant who had filed the appeal. The discretion of the trial court in awarding the costs is not in any way fettered if the lower appellate court says that "the costs shall abide the result.";