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Judgment
Phillips, J.—This appeal relates solely to costs. The plaintiff brought a suit for partition impleading his co-sharer, the 1st defendant, and a
large number of defendants who are alleged to be in possession of the land sought to be partitioned. The Subordinate Judge held that the plaintiff
ought to have paid additional stamp duty in respect of his claim against the defendants other than the 1st defendant. The plaintiff did not pay this
amount and his suit was dismissed with costs. It appears that in the decree the costs have been taxed as if the suit had been dismissed after contest
; but inasmuch as the suit has been dismissed for default of payment of stamp ''duty and as there has been no trial of the suit although the pleadings
have been filed and issues framed, the case would appear to come under Rule 278(b) of the Civil Rules of Practice ; and the fees should be
calculated in accordance with that rule.
It also appears that separate costs have been awarded to a very large number of defendants, and there is no provision for this in the judgment. It
would appear that so far as the separate costs are concerned, the 1st defendant would be entitled to his costs and the other defendants jointly to a
second set of costs.
The decree must be set aside and remitted to the Lower Court for framing a fresh decree in accordance with the above remarks.
No order as to costs.