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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,April 16,1910
and Mr. Justice Middleton.
PEBIYA CARPEN CHETTY v. MOHAMADU.
D. C., Kurunegala, 2,952.
Order to pay costs—Joint and several obligation—Civil Procedure Code,
It is the established practice to consider costs a joint and severaldebt. Where the respondents to an appeal (of whom there werefive) were ordered to pay the costs of the appellants, the respond-ents were held to have been bound jointly and severally to paythe costs.
PPEAL from an order of the District Judge of Kurunegala.
The Supreme Court in appeal ordered that the respondents:
(of whom there were five) should pay to the appellants their taxedcosts. One of the five respondents tendered a one-fifth portion ofthe costs and claimed a discharge. The learned District Judgeheld that the obligation to pay costs was a joint and several one.
H. A. Jayewardene, for the appellant.—Unless the order condemnsthe parties to pay the costs jointly and severally, each party isliable only for a pro raid share. Section 210 enacts that the ordershall direct by whom the costs of each party are to be paid, and inwhat part or proportion. The order in question does not say inwhat part or proportion the costs have to be paid. Under theRoman-Dutch Law, when several persons. are bound to paysomething,' each of them is liable only for his share of the wholedebt. The legal effect of the present order is that each of the fiverespondents can be compelled to pay a fifth part of the costs. Thecase reported in Morgan's Digest, 203, does not apply, as thatcase was decided before the Civil Procedure Code came into force.
Counsel also referred to Ramanabhan's Reports (1843)17;
Ramanaikan's Reports (1860) 54, and Appendix, 204.
A. St. V. Jayewardene, for the respondent.—We may infer fromsection 210, Civil Procedure Code, that where the Court does notsay in what proportion the costs have to be paid, each is liable in8olido. Counsel cited D. C., Galle, 4,85s.1
April 15, 1910. Hutchinson C.J.—
By the order of this Court made on September 2, 1909, it wasordered that the respondents should pay to the appellants theirtaxed costs of the appeal. There are five respondents. The
1 S. C. Min. Feb. 13, 1902.
4J. N. A 89168 (5/49)
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AprUlS,l$10 question is whether each of the five is liable as between him and theHrooHmsoN aPPe^an^s f°r the* costs, or whether he is only liable for one-fifth.
J. Section 210 of the Civil Procedure Code enacts that an order shallr~T direct by whom the costs of each party are to be paid, and whetherCarpen in whole or in what part or proportion. In this case* the Court didM^^nwdu no^ S've any direction as to the part or proportion in which therespondents were to be liable. It is contended, nevertheless, that .the Court must be taken to have directed that each respondent shallonly be liable for one-fifth of the costs. It is said that the rule ofthe Roman-Dutch Law is that when two or more persons are orderedto pay something, each of them is liable only for his share of thewhole debt. But I find that it is recorded in Morgan's Digest atpage 203 in the year 1837 that it is the established practice to con-sider costs as a joint and several debt. That seems to me to be areasonable practice, and we have not been referred to any authoritysince 1837 opposed to it. I think that any Court which, since theCode came into force, made an order such as the one made in thiscase, ought to be considered to have had in view that establishedpractice, and that an order such as this means what it says, that allpersons who are ordered to pay are liable to pay, and that no oneof them is discharged from his liability until the whole debt hasbeen paid. I think, therefore, that the appeal should be dismissedwith costs.
I agree, and would only add that the ruling quoted from Morgan'sDigest Beems to have been followed by Chief Justice Bonser in hisjudgment in Supreme Court Minutes, February 18, 1902 (257, D. C.,Galle, 4,856), so that I think we have a modern decision to guide us.following the ancient one referred to in Morgan's Digest.
PERIYA CARPEN CHETTY v. MOHAMADU