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TMI Blog1942 (8) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed with costs on the ground that the opponent was not in possession of the property. Thereafter the petitioner recovered the costs of those proceedings from the opponent. The opponent then filed a suit under O. XXI, Rule 63, for a declaration that the suit property was not liable to attachment and sale in execution of the petitioner's decree. The matter came to this Court in second appeal, and it was held that the opponent was entitled to a declaration that the suit property was not liable to be sold in execution of the decree. Thereafter the opponent applied under Section 144 of the Civil Procedure Code for refund of the costs which the petitioner had recovered from him on the ground that the executing Court's order was set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as having been set aside by the decree in the regular suit in favour of a party against whom the order was made. In order to appreciate this point it is necessary to see what is the nature of the order made in the main claim proceedings and the nature of the decree made in the regular suit thereafter. 3. When a claim petition is made under Rule 58 of O. XXI, the claimant or objector has to adduce evidence under Rule 59 to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. Under Rule 60, if the Court was satisfied among other things that the property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, the Court shall make an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order made by the executing Court. The question is whether the decree granting a declaration in the plaintiff's favour would have the effect of not only setting aside the order allowing or disallowing the claim but also of setting aside the order of costs in the claim proceedings. There is a difference of opinion on this point. The Madras High Court has held in Nambi Veettil Tarwad Tavazhi Karnavan v. Athikarath Valappil Tarwad Karnavan that the decree in such a suit would not have the effect of setting aside the order of costs and that the Court passing the decree has no power of making or varying the order of costs of the claim proceedings as the decree in the suit simply declares or rejects the claim of the unsuccessful claimant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goon High Court has held in V.E.R.M. Firm v. Maung Po Kyone (1927) I.L.R. 6 Ran. 408 that the Court trying the regular suit would have the power to pass an order about costs in the claim proceedings if a relief to that effect was asked for by the plaintiff in that suit. But in absence of such relief the order of costs could not be said to have been automatically set aside by the decree in the regular suit. In that case the claimant's petition was dismissed and a suit was filed by him for a declaration of his rights and for the total costs incurred by him in the claim proceedings including the costs awarded against him by the executing Court. It was held that the Court, trying the suit, could award such total costs by way of damages as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order by allowing or disallowing the claim. The order is not reversed or set aside in the sense of its reversal by an appellate Court. In my opinion, therefore, the view taken by the Nagpur High Court is not in consonance with the provisions of Rules 58 to 63 of O. XXI. There would not necessarily be an anomaly if the order of costs in the claim proceedings stands in spite of the unsuccessful party succeeding in the suit. The order of costs is entirely in the discretion of the Court and the question before the executing Court is not necessarily the same as the question before the Court, in the regular suit. It is conceivable that a party may not succeed on the question of possession in the claim proceedings and may still succeed in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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