Filing of Bill of Costs of the trail Court to be made only in the trail Court.

The appellant-petitioner in C.M.P.No.72/81 in A.S.No.151 of 1973 on the file of the Court if the learned Additional Judge, City Civil Court at Madras, is the respondent herein. The said C.M.P.No.72/81 was filed by the appellant in A.S.No.151 of 1978 under section 151, C.P.C. praying to amend the decree, dated 1st January, 1980 in A.S.No.151/78 by including the costs of trial Court as per the judgment and condoning the delay in filing the fee certificate in O.S.No.9379/74.

2. The affidavit of the partner of the appellant-firm in C.M.P.No.72 of 1981 is that the appellant became entitled to costs only on the award thereof by the lower appellate Court in allowing the appeal and dismissing the suit with costs and therefore, the counsel filed his fee certificate after the appellate judgment was pronounced and that the decree has been drafted without including the costs in the trial court. It is alleged that the fee certificate has been filed within the time stipulated after the appellate judgment was pronounced and hence the costs of the trial Court as certified should be taxed and included in the decree and delay, if any, in filing the fee certificate, should be condoned.

3. The plaintiff opposes the application in his counter-affidavit, it is stated that no bill of costs and fee certificate had been filed in the trial court within the time granted after judgment of the trial court was pronounced and hence, the same should not be included in the decree and that the said costs cannot be now taxed and included when the fee certificate is filed in the lower appellate court. It was further contended before the lower court that the prayer for condonation of the delay must be made by a separate petition and thereafter only, any petition for amendment of the decree as drafted should be filed.

4. The following points were framed by the lower Court for determination in C.M.P.No.72/81:

i. Has the bill of costs so far as it relates to costs incurred in the trial Court been filed in time?

ii. If not, is the delay, to be condoned?

iii. Does the decree as drafted require to be amended and if so, in what manner?

On point No.1, the lower court held that the appellant-petitioner had not filed his bill of costs so far as it relates to costs incurred in the trial Court within time. Under point No.2, the lower court held that there is no ground to condone the delay in the matter of filing the bill of costs so far as the trial court costs are concerned. Under point No.3, the lower court held that no amendment of the decree as drafted by the appellate court is necessary. The lower court dismissed the petition accordingly. Aggrieved by the above decision of the lower court, the court of the learned First Additional Judge, City Civil Court at Madras, the appellant-petitioner has come forward with this civil revision petition.

5. In the affidavit accompanying the petition it is inter alia stated by the partner of the appellant/petitioner that the appeal A.S.No.161/78 was allowed on 4th January, 1980, dismissing the plaintiffs suit with costs, that their advocate filed bill of costs and fee certificate in the above suit and also bill of costs in A.S.No.151/78. It is further stated in the affidavit that the lower court on 4th January, 1980 dismissed the plaintiff’s suit with costs and therefore, their advocate had filed fee certificate for the suit and as such, the appellant-petitioner is entitled to the costs of the trial court. It is further stated in the affidavit that the certified copy of the decree was received by the appellant-petitioner on 28th May, 1980 and that he immediately filed a memo on 16th July, 1980 in the office to correct the decree copy by including the costs of the trial Court. The Office had returned the said memo saying that the costs cannot be included in the appellate decree. It is further stated in the affidavit that the learned Counsel for the appellant-petitioner filed the fee certificate within the time after the judg