JUDGMENT - Smt. MHATRE NISHITA, J.:---The present Notices have been issued in Execution Applications filed by the defendants against the plaintiff for recovering the costs which have been awarded to them by the English Courts. The matter in dispute has arisen as follows :

An article was published in the issue of the "Sunday" dated 13/19-6-1993 concerning the plaintiffs and which they found to be defamatory. The plaintiffs, therefore, filed a suit for damages in the English Court in 1993 alleging that the article was defamatory. Defendant No. 3 was the publisher and defendant No. 4 was the Distributor of the magazine. On 13-8-1993, defendant No. 4 made an application before the Master Queens Bench Division for stay of the suit on the ground that the English Court had no jurisdiction to try the suit as the magazine was published from India and the proper Court would be the Indian Court. This application of defendant No. 4 was dismissed by the Master on 28-3-1994. An appeal was preferred by defendant No. 4 against he order of the Master to the learned Chamber Judge, French, J. On 9/10-6-1994, the appeal of defendant No. 4 was allowed on merits after hearing both sides on the issue as to whether the Indian Courts were the proper forum or the English Courts to try a suit for defamation in respect of a publication from India. The suit was accordingly stayed and the plaintiffs were directed to pay costs to defendant No. 4. Aggrieved by this order, the plaintiffs approached the Court of Appeal on 6-7-1994. An application was made by defendant No. 4 to the Registrar of the Court of Appeal for security of costs to be furnished by the plaintiffs.

On 28-7-1993, defendant No. 3 made an application to the Master for stay of the suit on the ground of lack of jurisdiction of the English Court. The application was referred to the learned Chamber Judge, in view of the order passed in the appeal preferred by defendant No. 4. The application of defendant No. 3 was allowed and the suit was stayed. Costs were reserved to the Court of Appeal. This order was passed on 27-10-1994 against which the plaintiffs preferred an appeal. Defendant No. 3 then made an application for security of costs in the sum of 20850 to defendant No. 4 and 12371 to defendant No. 3. The plaintiffs accordingly, deposited the amount for defendant No. 4 but not for defendant No. 3.

The Court of Appeal on 8-6-1995 dismissed the plaintiffs appeal with costs to be paid to defendant Nos. 2 and 4. The plaintiffs had remained absent at the hearing of the appeal. Again, this order was passed after the Court of appeal decided the same on merits. On 28-6-1996, the Taxing Master quantified the costs for the proceedings. Defendant Nos. 3 and 4 were awarded 26835.30 and 64175.05 respectively for the proceedings before the Master and the learned Chamber Judge for which Notice Nos. 1774 of 1997 and 1773 of 1997 have been taken out in this Court. Defendant No. 4 was awarded 32594.67 as costs for the proceedings before the Appeal Court. Out of this amount, a sum of 20850 was recovered from the security furnished by the plaintiffs and Notice No. 1772 of 1997 has been issued to recover the balance 11744.67. The Notices issued have been served on the plaintiffs who oppose the same.

2. Mr. Grover, learned Counsel appearing for the plaintiffs, submits that the award of costs cannot be recovered by execution proceedings as this was not a judgment as contemplated under section 13 of the C.P.C. He further submits that since no evidence was led while delivering the order, it is not a judgment which is conclusive as it has not been given on merits of the case as required under section 13(b) of the C.P.C. for this, (R. Vishwanathan and others v. Abdul Wajid)1, A.I.R. 1963 S.C. 1, (K.M. Abdul Jabbar v. Indo Singapore Traders P. Ltd.)2, A.I.R. 1981 Madras 118, (Algemene Bank Nederland NV v. Satish Dayalal Choksi)3, A.I.R. 1990 Bombay 170, and (M/s. International Woollen Mills v. M/s. Standard Wool (U.K.) Ltd

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