( 1 ) ). THE following two questions of general importance with regard to the taxing of costs on the appellate side have been referred by a Division Bench of this Court (D. P. Desai and N. H. Bhatt JJ) to the Full Bench: (1) Where the appellate Court passes an order with regard to allowing proportionate costs to each of the two contesting parties in the appeal which succeeds partly are the court-fees to be taxed as payable according to the table of fees on the claim actually allowed or in proportion to the court-fees paid on the entire claim in appeal by finding out some percentage of success of the appeal as compared to the whole claim made ? (2) Whether advocates fees are to be taxed as per the table of fees on the amount of claim allowed or disallowed or whether they are to be taxed on percentage basis as stated above ?

( 2 ) THESE two questions arise as pointed out in its order of reference by the Division Bench out of a common practice prevalent in this State in the appellate Courts and in some cases even in the trial Courts to pass an order of costs in proportion to the success of the claims that is to say to award costs to the plaintiff or appellant in proportion to the success of his claim and to award to the defendant or respondent proportionate costs on the claim disallowed Such an order raises the question as to in what manner and proportion costs are to be taxed in relation to court-fees and advocates fees and it is to set at rest the doubt or debate if any on such question that this reference has been made to the Full Bench.

( 3 ) IT appears that the practice which prevailed in the former High Court of Bombay and which was adopted in this Court up to 1967 was that when an order of the aforesaid nature was passed costs in relation to court-fees and advocates fees were taxed so far as the appellant was concerned on that past of the claim which succeeded. In other words when costs were awarded in proportion to the success of the appeal such costs in relation to court-fees and advocates fees were taxed as if the appellant had restricted his appeal only to that part of the claim which succeeded and upon which he would have been ordinarily entitled to costs. So far as the respondent was concerned costs in relation to advocates fees were taxed on that part of the claim in the appeal which was disallowed and he was awarded such costs. To give an illustration if the claim in appeal was Rs. 20 0 and the appeal was allowed to the extent of Rs. 5 0 and an order was made to the effect that the parties would be entitled to costs in proportion to their success in the appeal court-fees as well as advocates fees were taxed on the amount of Rs. 5 0 so far as the appellant was concerned and advocates fees were taxed on Rs. 15 0 so far as the respondent was concerned and both were accordingly awarded costs in respect of those two items. It would appear that under the aforesaid practice the same standard was adopted in the matter of taxing costs on both the items namely court- fees and advocates fees.

( 4 ) THE question as to whether the aforesaid mode of taxing costs was correct came up for consideration before a Division Bench of this Court consisting of N. G. Shelat and A. S. Sarela JJ. in First Appeal No. 1033 of 1969. The appellant in that case had made a claim of Rs. 19 638.

( 5 ) AND the appeal was allowed to the extent of Rs. 4 358. 5 and disallowed to the extent of Rs. 15 280 While disposing of the appeal the Division Bench made an order to the effect that the appellant would be entitled to costs in proportion to his success in the appeal and he would pay to the respondent costs in proportion to his failure in the appeal. On the basis of the practice prevalent in this Court the bill of costs was prepared and thereunder court-fees and advocates fees were taxed so far as the appellant was concerned on the amount of Rs. 4 358. 5 and advocates fees were taxed so far as the respondent was concerned on Rs. 15 280 An o