The only point urged in this Second Appeal is that the Subordinate Judge was wrong in having given a decree in favour of the plaintiff, in respect of the costs incurred in claim proceedings. In support of his order, the learned Subordinate Judge relies upon Dwarka Nath Kundu v. Mohendra Nath Roy(1). I do not see how that case supports him. The suit contemplated by O. 21, R. 63 is a suit for declaration. R. 63 is in these terms:
“Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.”
The order does not say that the claim order will be vacated by reason of the judgment in the suit. The suit which is contemplated by R.63 is a suit for declaration of the right, either of the claimant or of the creditor, and the Court simply gives a decree declaring the right of the plaintiff or dismissing his suit. There is no precedent brought to my notice, in which the costs of the claim petition were allowed in favour of the successful plaintiff. Mr. Menon who appears for the respondent says that the suit is in the nature of an appeal against the claim order and therefore he is entitled to the costs incurred in prosecuting the claim petition. But O. 21, R. 63, makes no provision for the costs of the claim petition being allowed, in favour of the successful party in the suit; and as I said, it only contemplates a suit to establish the right of the plaintiff; and that being so, the Court can only give a declaration in favour of the plaintiff or dismiss the suit. The Subordinate Judge is wrong, in giving the costs of the claim petition to the plaintiff. The decree of the Lower Appellate Court will be modified, by deleting from it the amount, which the Subordinate Judge allowed for costs of the claim petition. With this modification the Second Appeal is dismissed with costs.
W.S.SAppeal dismissed: Decree modified.