MACDONELL C.J.—Vaitalingam v. Murugesu.
Present: Macdonell C.J. and Garvin S.P.J.
VAITALINGAM et al.. v. MURUGESU.
434—D. C. Jaffna, 26,302.
Foreign judgment—Decree for costs—Variance between decree and allocatur—Action in Ceylon.
Where in a foreign judgment the plaintiff was ordered to pay the costsof the successful defendant but in the allocatur the costs were orderedto be paid to the defendant’s solicitors,—
Held (in an action instituted in Ceylon on the foreign judgment),that the costs were payable according to the terms of the decree.
^/^PPEAL from an order of the District Judge of Jaffna.
Nadarajah, for the plaintiffs, appellants.
Subramaniam, for the defendant, respondent.
November 3, 1931. Macdonell C.J.—
In this case the plaintiffs sue on a foreign judgment wherein theywere the successful defendants and wherein the plaintiff was orderedto pay them the costs of suit as taxed by the officer of the Court fromwhich the decree issued. The costs were taxed but in the allocaturthey were ordered to be paid by the unsuccessful plaintiff “ to thedefendants’ solicitors ”. In so far as this allocatur varies from the wordsof the decree it clearly is of no effect, and the words of the decree willhave to be followed. The present appellants now sue the plaintiff onthe foreign judgment for the costs due by him under that judgment.At the trial below the learned Judge laid stress on the wording of theallocatur, but it has been pointed out that the document where it differsfrom the word of the decree cannot stand, and the words of the decreeare clear that the payment must be made to the defendants. The re-spondent on this appeal did not in the Court below plead payment eitherto the appellants or to their solicitors. An issue was agreed upon, “ Is thesum of money taxed on this bill payable by the defendant to the plaintiffsas costs of the suit under the foreign judgment ” and the learned Judgerelyfng on the fact that the allocatur said that the sum must be paidto the “ defendants’ solicitors ” dismissed the action. On this statementof facts it is perfectly clear that the dismissal was wrong and that themoney is owed by the present respondent to the appellants in thisaction.
The appeal must be allowed with costs here and in the Court below.Garvin S.P.J.—I agree.
VAITALINGAM et al. v. MURUGESU