The provisions of section 35-B of the Code of Civil Procedure, 1908 are not of universal application and have a restrictive operative field.

JUDGMENT - B.A. MASODKAR, J.:---The revision is directed against the order rejecting Notice of Mition taken out by the defendants for inclusion of costs of Rs. 500/- in the bill of costs of notice of motion taken out and dismissed upon failure of the plaintiffs whose suit was dismissed in default.

2. The plaintiffs had filed the suit for recovery of a sum of Rs. 10,500/-. That suit was dismissed on October 7, 1981 for default of the plaintiffs. The plaintiff s took out Notice of Motion No. 1822 for setting aside the dismissal and restoration of suit. That motion was made absolute by an order of July 14, 1982, which quantified a sum of Rs. 500/- as costs being 'thrown-away costs' and also separately the costs of Notice of Motion payable within four weeks. Upon such payment of costs the suit was directed to be restored. The order further stated that in default of payment of such costs, Notice of Motion to stand dismissed with costs, plaintiffs did not abide by the condition. In the bill of costs of the motion a sum of Rs. 500/- was not included and motion was dismissed. Therefore, the defendants took out the present Notice of Motion. By the impugned order Court rejected the same.

3. Mr. Tripathi relies on the provisions of section 35-B of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') Inserted by Amending Act No. 104 of 1976 in the Code. Sub-section (2) of that provision permits the costs which are not paid to be included in the costs awarded in the bill of costs in the suit. Mr. Tripathi submitted that a sum of Rs. 500/- should have been included in the bill of costs upon dismissal of the suit.

4. Firstly, the submission of Mr. Tripathi raises a question of construction of the order that was made in Notice of Motion No. 1822 of 1982. If the order be clear and the matter being in the jurisdiction of the Court to make such an order, reliance on section 35-B of the Code would hardly further the submission of the learned Counsel. Secondly, the submission raises a question of finding out an applicative field of section 35-B of the Code itself.

5. As far as the law on costs is concerned, the statutory object in making express provision like the one available in section 35, of which section 35-B of the Code is a corollary, is to secure to the litigant the expenses incurred by him in the prosecution of the matter and not to punish the party against whom the cases are awarded nor to enable a given party to make a gain or profit out of the litigation by having costs. The statute regarding costs provides a sort of indeminity as against the expenses to which a litigant is put. Ordinarily, what the Court orders as payable as costs decide the entitlement of the party to receive the said sum meant to meet the expenses incurred by such a party in the litigation. This position apart from being clear is also appears to be settled by precedents. See (Firm of N. Peddanna v. K.V.S.S. Sons)1, A.I.R. 1954 S.C. 26; (Manindra Chandra v. Aswini Kumar)2, A.I.R. 1921 Calcutta 185; (Gajadhar v. Ambika Prasad)3, A.I.R. 1925 Privy Council, 169.

6. What was then provided for by the earlier order? That order made on July 14, 1982, on a fair reading, does not admit any doubt that the costs of Rs. 500/- were treated as thrown-away costs or special costs payable as a condition precedent only in the event the suit was to be restored and the notice of motion was to be acted upon leading to such a result of restoration of the suit. Such special costs could be awarded so as to cover the expenses that might have been incurred had the suit were to revive. That order itself in the alternative provided that in case of default in payment of these costs, the notice of motion was to stand dismissed with costs, in other words, when the notice of motion was treated to be dismissed by reason of the operative order, upon such dismissal the order as to costs would not take in the sum of Rs. 500/- which was described as the throw-away costs. It is not in di

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