R.B. Misra, J. - (1.) THIS appeal by the judgment -debtors is directed against the order of the Civil Judge, Kanpur, dated 19 -11 -1957, dismissing their objection Under Section 47 of the Code of Civil Procedure.
(2.) THE Appellants' father Shyam Lal had executed two mortgages; one dated 16 -2 -1925 and the other dated 31 -3 -1927, in respect of his zamindari share in village Umari, in favour of the Respondents. The Respondents filed Suit No. 23 of 1925 on the basis of the said mortgages and obtained a preliminary decree for sale for a sum of Rs. 40,000 and odd. Both the parties were dissatisfied with the decree and so both of them came up in appeal to this Court. The appeal of the Respondents was allowed in part; but the appeal filed by the Appellants was dismissed with costs on 12 -8 -1954. The costs came to the tune of Rs. 3,388/2/ - . It may be noted that the appellate decree did not specify how the decree for costs was to be realized. The decree simply said, "The appeal is dismissed with costs." The Respondents applied for execution of the said appellate decree for costs, The Appellants filed an objection Under Section 47 of the Code of Civil Procedure on two grounds. The first ground was that the suit, having been filed on the basis of the mortgage, the costs could be recovered from the mortgaged property itself and they could not be recovered from the person and other property of the Appellants. The second ground was that the amount of costs awarded by the appellate Court should be reduced in accordance with the provisions of Section 3 of Zamindars' Debt Redemption Act. The learned Civil Judge rejected the objection. He said: In my opinion the costs can be realised from the person and property of the Respondents. The execution Court cannot go behind the decree. The decree, as I have quoted above, does not make any provision that these costs are to be realized from the property mortgaged. Had it been so, a decree under Order XXXIV, would have been passed. I am, therefore, unable to agree with the Learned Counsel for the objector that the costs cannot be realized from the person and the property of the J.Ds. The Appellants have, therefore, come up in appeal. Before us only the first ground has been pressed and we are not concerned with the second ground in this appeal.
(3.) SRI B.R. Avasthi for the Appellants contends that costs awarded to the Respondents form part of the mortgage decree and thus it can be recovered from the mortgaged property itself and not from them personally. In support of his contention he relies on (i) Maqbul Fatima v. Lalta Prasad , ILR 20 All. 523; (ii) Mohammad Iftikhar Ullah v. Banke Lal, 45 ILR All. 630; (iii) Wahid Ali v. Durga Shankar : AIR 1926 All 343; (iv) Shri Chand v. Puttu Lal, AIR 1935 Oudh 452; and (v) Aziz Ahmad v. Riazul Hasan : AIR 1934 All. 89.;