Kulwant Sahay, J.This is an application for amendment of a decree made by this Court. The application Is on behalf of defendant 3. The decision of this Court, so far as this defendant is concerned, is that the appeal be dismissed as against him with costs. There was another defendant, namely, defendant 14, whose advocate asked for costs also, and it was ordered that the appeal be dismissed as against the said defendant 14 and that he entitled to his costs in this Court--hearing fee ten gold mohurs. The decree was prepared in this Court awarding costs jointly to defendants 3 and 14 and it awarded ten gold mohurs as hearing fee to both of them.

2. The petitioner contends that under the terms of the judgment he was entitled to separate costs and to the full hearing fee according to the ordinary scale and that the ten gold mohurs as hearing fee was the fee allowed to defendant 14 separately.

3. In my opinion, the contention is sound and the decree must therefore be amended by awarding separate costs to defendant 3 and defendant 14. Defendant 3 is entitled to his costs and to the full hearing fee according to the ordinary scale and defendant 14 is entitled to his costs and ten gold mohurs as his hearing fee, according to the terms of the judgment.

4. A point has been taken on behalf of the learned Government Pleader to the effect that the present application is not maintainable because a previous application to the same effect Had been rejected by this Court. It appears that upon the previous application a notice was ordered to issue, but the petitioner failed to file the process forms although he had deposited the talbana and copies, and therefore the previous application was dismissed for default. He made an application for review of that order and that application was also dismissed. It is contended that the rejection of the previous application operates as a bar, on the principle of res judicata, to the hearing of the present application. In my opinion, the objection cannot be entertained.

5. The previous application was not heard and decided on merits. Notice was ordered to issue; but notices were not issued on account of default on the part of the petitioner. The case of the petitioner may not be worse than the case of a plaintiff whose suit has been dismissed for non-service of summonses upon the defendants. Under Order 9, Rule 4, such a plaintiff has the right to institute a fresh suit subject, of course, to the law of limitation. Similarly the dismissal of the previous application in the present case cannot operate as an estoppel and does not debar him from making the present application inasmuch as the previous application had been rejected without adjudication on merits.

6. The point was considered by the Calcutta High Court in Langat Singh v. Janki Kuar (1911) 39 Cal 265 and the cases cited there support the view which I am inclined to take on the point. This application is therefore allowed as indicated above.

7. There will be no order for costs in this application.

Macpherson, J.

7. I agree.