Exemplary costs against a deceased defendant are unsustainable without reasoned justification.

The plaintiffs had sought declaration of right, title and interest over the suit land, recovery of possession and permanent injunction against the defendants.

The trial court’s decree was affirmed by the first appellate court, which dismissed the defendants’ appeal and directed Defendant No. 1 to pay exemplary costs of ₹10,000 to the plaintiff.

The second appeal was admitted on the question whether that costs order was legally sustainable.

At the hearing, the appellants also sought consideration of a question concerning the location of the suit wall, relying on a Commissioner’s report; the respondents opposed its treatment as a substantial question of law.

Whether the first appellate court acted illegally in imposing exemplary costs of ₹10,000 on Defendant No. 1 while dismissing the appeal.

Whether the appellants’ question about the suit wall’s location, based on the Commissioner’s report, raised a substantial question of law under Section 100 CPC.

Section 100 of the Code of Civil Procedure, 1908, confines a second appeal to a substantial question of law; a question that turns on whether a wall lies on one party’s land or another’s is ordinarily a question of fact and does not, without more, qualify.

Although awarding costs lies within the court’s discretion, that discretion must be exercised with reference to the facts on record and supported by a precise, reasonable basis.

The judgment cites no precedent.

The Court held that the proposed question concerning the wall’s location was factual and therefore could not be entertained as an additional substantial question of law in the second appeal.

On the admitted question, it observed that the appellants were entitled to pursue an appeal, while the first appellate court’s exemplary-cost order lacked a sufficient reasoned basis and was directed against Defendant No. 1, who had died; the amount was consequently not recoverable from him.

The Court therefore found no ground to disturb the concurrent decisions on the merits, but set aside the costs order.

The ₹10,000 exemplary-cost order against Defendant No. 1 was waived; there was no order as to costs.