JUDGMENT Dalal, J.
1. The trial Court had to interpret a decree of this Court. The mortgagor has appealed here from a decree for sale and the decree of this Court was:
the decree of the Additional Subordinate Judge of Budaun be confirmed and that this appeal be and here by is dismissed, and it is further ordered that the appellants aforesaid do pay to respondent 1 aforesaid the sum of Rs. 578-5-0 the amount of costs incurred by the latter in this Court, and it is further ordered that the costs incurred in the lower Court be paid with interest thereon as awarded by the said Court.
2. The decree-holder put into execution as a simple money decree against the mortgagor a decree for a sum of Rs. 578-5-0 the costs of this Court. The trial Court held that this Court had not granted a personal decree but that the amount should be included in the total amount for which the property was to be sold under Order 31, Rule 5, Civil P. C, in a final decree for sale and that only on the property not being found sufficient for the payment of the amount and when a simple decree if one is permitted, is obtained under Rule 6, that a personal liability of the mortgagor arises. Mr. Kamala Kant Varma was very persuasive as he generally is in inducing this Court to hold that the opinion of the trial Court was in conflict with the rulings of this Court. He placed all the rulings before the Court starting with the Full Bench ruling in the case or Maqbul Fatima v. Lalta Prasad [1898] 20 All. 523. The other rulings placed by him before the Court were Dambar Singh v. Kalyan Singh [1917] 40 All. 109, Amina Bibi v. Rama Shankar Misra [1919] 41 All. 473, Wahid Ali v. Durga Shankar, A.I.R. 1926 All. 313 and Khairunnissa Bibi v. Oudh Commercial Bank, Ltd, A.I.R. 1929 All. 287 The true principles of interpreting such a decree are declared in the Fall Bench ruling. I do not think that that ruling can be distinguished from the present case on the alleged ground that it did not deal with the High Court decree but with a decree of the trial Court. When a decree of the High Court exists there cannot be a separate decree of the trial Court. It is true that at p. 526 of the report there does appear a sentence:
As regards the costs of the appellate Court, there is no controversy in this appeal.
3. The meaning possibly conveyed by these words was that it was admitted by the parties that costs of this Court would form part of the mortgage money and it was only with respect to the costs of the Court of first instance that it was contended by the decree-holder respondent in that case that he was entitled to recover that amount of costs from the person of the mortgagor. The learned Judges decided that the contention of the decree-holder could not prevail. In that case also the portion of the decree which their Lordships had to interpret was:
It is further ordered that the defendant aforesaid do pay to the plaintiff aforesaid the sum of Rs. 876-8-0, the amount of costs incurred by them in this Court.
4. It was contended in that case on behalf of the respondent that this direction in the decree was independent of the rest of the decree and it was urged that under this clause the mortgagee-plaintiffs were entitled to recover the costs from the defendants personally. Their Lordships said that they were unable to accede to that contention. In their opinion this clause in the decree relied upon by the decree-holder was only a formal compliance with the provisions of the Code of Civil Procedure and was not directed for the recovery of costs personally from the debtor. They went further and said that even if there were any ambiguity in the decree it would be the duty of the Court to construe the degree in the light of the terms of the Transfer of Property Act which was then the rule. There cannot be the slightest doubt that ordinarily costs must be included in the amount due on the mortgage and the property must be sold for the total amount and the decree for costs cannot be executed. separately as a personal decree against the mortgagor. Rule 4, Order 34, lays down how a preliminary decree in a suit for sale is to be prepared. That decree directs the payment out of the property 'not Only of the sum due to the plaintiff in a suit for sale at the time of the passing of the decree but also subsequent interest and subsequent costs. Again the same purpose is repeated in Rule 5 when the final decree has to be prepared. In this decree all subsequent costs mentioned in Rule 10 are to be included in the total amount recoverable from the property Rule 10 lays down:
In finally adjusting the amount to be paid to a mortgagee in case of a sale....the Court shall...add to the mortgage-money such costs of suit as have been properly incurred by him since the decree for sale up to the time of actual payment.
5. It cannot be denied that costs in an appeal are costs incurred by the mortgagee up to the time of actual payment. The same principle as regards interpreting a decree in accordance with the terms of the Code of Civil Procedure were enunciated in the ruling in 40 Allahabad referred to above. It was held there that in construing a decree similar to the one now before me it was open to the Court to consider, first, the nature of the suit, secondly, the judgment of the High Court upon which the decree was founded and the general practice of the Court.
6. Their Lordships held that considering these matters the intention of the Court which passed the decree which they had to interpret was that there should be the ordinary mortgage decree awarding the costs incurred in the suit and up to the time of the final decree to be realized by sale of the mortgaged property. Mr. Kamala Kant picked out one sentence at p. 115 out of the judgment and desired to draw the conclusion that their Lordships were of opinion that when costs were to be included in the mortgage money the High Court should so state. In fact that sentence was used when their Lordships pointed out that the form of the decree prescribed in this Court was not correct in preparing a decree for sale. Unfortunately those observations do not appear to have been brought to the notice of the office of this Court and the same form is still continued. The words used by their Lordships were:
While we decide in favour of the appellants, we think it right to say that the form used by the High Court is not strictly correct as applied to mortgage suits. Order 40, Rule 35, prescribes what a decree of the appellate Court shall contain, and it would seem that it is more accurate that in mortgage suits where it is the intention of the Court that the costs should be recoverable out of the property and not personally against the party, the decree of the High Court should so state. It perhaps may also be considered whether in mortgage suits in which the High Court is making a decree for sale the High Court's decree instead of merely being a dismissal or affirmation of the decree of the lower Court, should not be in the form prescribed by Order 34 directing the property to be sold and stating the amount which is to be recovered from the property including costs.
7. Their Lordships found fault with the existing form of the decree and did not desire that when the High Court dismissed an appeal from a mortgagor against a decree for sale, they should specifically state that the costs were to be included in the mortgage amount. In the 1926 case reported in the All India Reporter Sulaiman, J., recapitulated all the case-law on the subject and came to the conclusion that unless there was in the judgment a specific direction that the costs should be recovered from the mortgagor personally the presumption must be that the decree directed costs to be added to the mortgage amount. In. the 1929 case also a Bench of two Judges appears to have held the same view. The learned Judges gave it as their opinion that the costs may either form part of the mortgage money or may be ordered to be recovered from the person of the mortgagor, but in that case they were not called upon to interpret any particular decree of the High Court. The only ruling which may in some way be considered to lay down principles in conflict with the general tenor of rulings in this Court is that of Amina Bibi v. Rama Shankar Misra (3) quoted above. One of the learned Judges, Walsh, J., appears to have brought the general principles of equity as understood in England to bear on the facts of the case, and he was of opinion that principally the mortgagor shall be made personally liable to pay the costs of appeal. In his judgment there was no discussion of the rules laid down in Order 34. Piggott, J., the other learned Judge, interpreted the decree merely in the particular case before him and admitted that as a rule costs of appeal would be included in the general mortgage costs. For this reason Sulaiman, J., was justified in distinguishing this ruling by saying:
that the learned Judges had to consider the particular decree which was before them and their interpretation of it was that the appellant had been made liable to pay the costs personally.
8. Possibly these observations would not apply to the judgment of the learned Judge, Mr. Walsh, but they certainly applied to the observations of the other learned Judge. In the judgment of the High Court, in the case before me, the only order is : "The appeal is dismissed with costs." There is no specific order that the costs would be recoverable from the person of the respondent, and not according to law.
9. I agree with the opinion of the trial Court and dismiss this appeal with costs.
10. The attention of the Registrar shall again be drawn to the form of the decree of this Court in a suit for sale.
11. Permission to file an appeal by Letters Patent is granted.