The Midnapur Zemindary Co., Ltd. vs Madan Marwari and others

Dawson-Miller, C.J.—The appellants in this case were the plaintiffs in 20 different suits for annulment of encumbrances which after being dismissed by the Courts in India eventually went on appeal before His Majesty in Council. These suits were consolidated under the provisions of O. 45, R. 4, of the CPC for the purpose of appeal to His Majesty in Council. In that appeal the plaintiffs were successful or partly successful and an order was made as appears from the report of the Judicial Committee, dated the 3rd June 1919, which is a part of the order in Council of the 25th June 1919 that the appellants in that case were awarded their costs against the respondents. They were awarded not only the costs of the appeal to His Majesty in Council but also certain costs incurred in the High Court in Calcutta and the order as to costs is in these words: "Their Lordships do direct that there be paid by the respondents to the appellants their costs of these appeals incurred in the High Court and the sum of � 561-6-0 for their costs thereof incurred in England." So far as the costs in the High Court at Calcutta are concerned there were, no doubt, at that time separate appeals and the costs, I presume, awarded against the respondents, would be the costs against each of them in the appeal to which each was a party. But so far as the costs of the consolidated appeals to His Majesty in Council are concerned it seems to me that there is no reason for interpreting that order as bearing any different meaning from that which is its ordinary and natural meaning. If costs are awarded against a number of defendants or a number of respondents without indicating the proportion in which those costs shall be borne by the different respondents, such an order is always taken to mean that the respondents or the defendants, as the case may be, are jointly and severally liable for the costs, and the order for costs may be executed against any one of them, who will have a right of contribution against the others in a case of this nature.

It is contended, however, that as there were a number of appeals in this case, the costs ought to be apportioned between the various respondents who appeared in the appeal. It does not seem to me that that contention can be supported. The appeal, although it might not be inappropriate to refer to it as several appeals, was in fact one appeal which was consolidated for the purposes of presenting it before His Majesty in Council and it could not otherwise have been presented. Therefore in dealing with the costs of this appeal, I have no doubt at all that what their Lordships meant was that the costs of this appeal should be borne in the ordinary way by one and all of the respondents jointly and severally. Each of them is responsible for this appeal and was contesting the appellants'' case and each of them in that sense is liable to bear the costs. He has a right of contribution against his co-respondents and is entitled to be reimbursed for their portion of the costs which he in the first instance will have to pay. It is said that under O. 45, R. 4, the case is only consolidated for the purpose of pecuniary value. It does not seem to me that it really matters what the reason is why the appeals are consolidated. Once they are consolidated for whatever reason, they form in fact one appeal and the parties in that appeal must be treated just as the parties in one suit. In my opinion the learned District Judge, from whose decision this appeal was brought, is wrong. His decision ought to be set aside and the case sent back to the executing Court for execution in the ordinary way. The Appellants will be at liberty to amend their application for execution by giving the numbers of the suits and the appeals out of which the Privy Council appeal arises. The Appellants are entitled to their costs of this appeal here and in both the Courts below, the costs to be paid by the Respondents who appeared and contested the claim.

Mullick, J.

I agree.