A successor Magistrate can assess the costs in accordance with the direction of the Magistrate who passed the final order under Section 145, and a delay of one year in filing the application for assessment of costs is not unreasonable.

K.Sahai, J.

1. The facts relevant for decision of the points raised before this Court are as follows. There was a dispute relating to the possession of some lands between the parties. A proceeding under Sec.145 of the Code of Criminal Procedure was drawn up. The petitioner was the first party whereas the members of the opposite party in this Court were the second party in that case. The proceeding was finally disposed of by Mr. R. N. Sinha, a Magistrate with first class powers of Arrah, on 23-11-1953. The learned Magistrate declared that the disputed lands were in the possession of the second party. The last sentence of his order was:

"First party to bear the pleaders cost incurred by the second party."

Mr. R. N. Sinha was thereafter transferred from Arrah, but the actual date of his transfer is not apparent from the record. On 6-9-1954, the opposite party filed an application under Sec. 559 of the Code of Criminal Procedure before the District Magistrate with the prayer that the successor to Mr. R. N. Sinha be appointed. By an order of the same date, the District Magistrate directed the Sub-divisional Officer of Arrah Sadar to dispose of the matter, or, in other words, he appointed the Sub-divisional Officer to be the successor of Mr. R. N. Sinha.

The opposite party tiled an application on 15-9-1954, before the Sub-divisional Officer for assessment o£ the costs. By an order dated 8-12-1955, the bub-divisional Magistrate has assessed the costs payable by the petitioner to the opposite party at Rs. 1,596/-. This application in revision is directed against that order.

2. Appearing on behalf of the petitioner, Mr. Kailash Rai has raised three points. His first point is that the Magistrate who passes an order under Section 145, Sec.146 or Sec.147 must himself pass an order under Sub-section (8) of Sec.148 for payment of costs by one party or the other, and that he must also assess the amount of costs. In my opinion, this argument is not quite correct. Sub-section (3) of Sec.148 reads:

"Order as to costs: When any costs have been incurred by any party to a proceeding under this Chapter the Magistrate passing a decision under Section 145, Sec.146 or Sec.147 may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or in proportion. Such costs may include any expenses incurred in respect of witnesses, and of pleaders fees, which the Court may consider reasonable."

A perusal of this sub-section makes it perfectly clear that the direction for one party or the other to pay costs and to pay it in whole or in part or in a certain proportion must be given "by the Magistrate passing a decision under Sec.145" or the other sections of Chap. 12. There is nothing in this provision to show that even the actual assessment cannot be made by another Magistrate. Sub-section (1) of Sec. 559 reads :

Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office." It seems to be manifest that a successor Magistrate can, under Sec. 559(1), do the actual work of assessment of costs in accordance with the direction of the Magistrate who passed the final order under Sec.145, 146 or 147. I am unable to find any legal objection to this course being adopted.

3. I may now refer to some of the decisions which have been cited at the bar. The earliest decision of the Calcutta High Court, which has been cited, is the one in Bhojal Sonar V/s. Nirban Singh, ILR 21 Cal 609. A Division Bench consisting of Beverley and Hill, JJ. held that even where a Magistrate, who passed the final order under Sec.145, directed the payment of costs by one party, his successor had no jurisdiction to assess the actual amount of costs more than two years after the date of the original order.

4. The same question came up for decision before Beverley and Banerjee, JJ, in Giridhar Chatter-fee V/s. Ebadullah Naskar,