This bill in equity under G. L. c. 40A, § 21, as amended, by way of an appeal from a decision of the board of appeals of New Bedford granting a variance to the defendants Ramos was before us in 346 Mass. 423. At that time the rescript in its entirety provided: ‘‘ The decree is reversed. A final decree is to be entered in the Superior Court adjudging that the decision exceeded the authority of the board and is annulled” (page 426). Thereafter there was entered a final decree after rescript which not only contained the foregoing but also ordered the defendant city to *293pay to the plaintiffs or their attorneys costs of suit amounting to $727.09. This was one half the total costs. The reasoning behind this order as to costs seems to have been that the city council, which had been allowed- to intervene at the original hearing on the merits in the Superior Court, voted to appeal to the full court from the adverse ruling of the judge of the Superior Court and to request the mayor to make the necessary funds available to the city solicitor “in order that there will be no delay in preserving the legal rights of the City of New Bedford.” The mayor returned the order without his approval, the city solicitor took no steps to perfect an appeal, and no funds were provided for prosecuting one. The costs of the appeal fell entirely on the plaintiffs.

The decree did not conform to the rescript. Bourbeau v. Whittaker, 265 Mass. 396, 399. Crowley v. Holdsworth, 267 Mass. 13,16. Carilli v. Eersey, 303 Mass. 82, 85. Galvin v. Bay State Harness Horse Racing & Breeding Assn. Inc. 343 Mass. 520, 522. The decree also was repugnant to G. L. c. 40A, § 21 (as amended through St. 1960, c. 365), which provides that no costs shall be awarded (1) against the board unless it appear that the board “acted with gross negligence, in bad faith or with malice”; or (2) against the party appealing from the decision unless it appear that there was bad faith or malice in making the appeal.

The final decree is to be modified by striking the provision as to costs, and, as so modified, it is affirmed.

So ordered.