Full Judgment
Sinha, J.
1. This is an appeal by the decree-holders against a judgment of the learned Civil Judge of Basti by which he refused their prayer for execution of the decree. The facts briefly are these : One Bhabuti Prasad instituted a suit against the appellant Mt. Munna Tewarain, which was dismissed by the learned Subordinate Judge with costs. The costs amounted to Rs. 1500. Bhabuti Prasad preferred an appeal to this Court and made an application for stay of execution of the decree for costs. Stay was granted conditional on his furnishing security for the costs of the trial Court and the probable costs of the High Court. He offered one Ajodhia Prasad as a surety. Ajodhia Prasad filed a registered security bond on 9th May 1935. The appeal to this Court was dismissed on 2nd August 1938 and the respondent was awarded Rs. 1300 on account of the costs of the appeal. On 12th September 1936 Bhabuti Prasad had made an application under Section 4, U.P. Encumbered Estates Act. The decree-holders made an application for execution of their decree for costs. The judgment-debtors pleaded the bar of Section 7, U.P. Encumbered Estates Act, (25 of 1934). The learned Judge acceded to the objection of the judgment-debtors and has, as mentioned above, refused execution both against Bhabuti and Ajodhia. There can be no doubt that Section 7, U.P. Encumbered Estates Act, constituted a bar to the application for execution against either in so far as the costs of the Court of first instance were concerned. Section 7 (1) (b) clearly says:
that no fresh suit or other proceeding...shall...be instituted...in respect of any debts incurred before the passing of the said order...
2. The liability for the costs of the Court of first instance had come into being prior to the application under the Encumbered Estates Act. It was, therefore, a liability 'incurred before the passing of the said order -' The above view is supported by the case in A.L.J. 346, Inamullah v. Babu Ram : AIR1937 All360 . The decree-holders, however, contend that there was no bar to the execution of the decree for costs awarded by the High Court inasmuch as the liability was not 'incurred before the passing of the said order....' The judgment-debtor, however, relies upon the case in Mohammad Bashirullah Khan v. Collector, Shahjehanpur : AIR1940 All245 in support of his contention that the execution could not proceed even with regard to the amount of costs awarded by this Court. We feel it impossible to subscribe to this view. At p. 118, the learned Judge observed : 'liability for costs is a pecuniary liability and is incurred when a suit was brought.' It is true that liability for costs is a pecuniary liability but it is not possible to say that it is 'incurred' the moment the suit is brought. The liability may or may not arise; the plaintiff may not be saddled with any costs even though his suit is dismissed. It, however, comes into being when an order to that effect is passed, and it is only then that the liability is actually ''incurred.' In the present case, the liability came into being when the High Court affirmed the decree of the Court of first instance and awarded costs. We, therefore, think that the execution of the decree which related to the costs awarded by the High Court does not offend against Section 7 (1) (b), U.P. Encumbered Estates Act. We, therefore, allow the appeal, modify the order of the Court below to this extent that the execution shall proceed to the extent of Rs. 1300, the costs awarded by the High Court. We, therefore, send the case back to the Court below with direction to restore to its original number and proceed with it according to law. The parties shall bear their own costs both here and in the Court below.