Madanlal and others vs Ramnath and others

P.K. Tare, J.

This is a revision u/s 115 of the CPC against the order of Civil Judge, Class I, Hoshangabad, in Civil Suit No. 1-A of 1957, dated 19-6-1973, holding that the order of the Court directing the Commissioner''s fee to be paid by the defendants was executable at the instance of the Commissioner.

In a partition suit filed by the 1st respondent, Ramnath, a Commissioner was appointed to effect partition and the Commissioner''s fee was fixed at Rs. 600; Rs. 300 being payable by the plaintiff and Rs. 300 by the defendants. The plaintiff deposited his share of the Commissioner''s fee, while all other defendants, except Pannalal, committed default. Therefore, the learned Judge passed an order authorising the Commissioner to recover the unpaid fees by executing the order.

The learned counsel for the petitioners contended that there is a conflict of views on this question and, therefore, this might need an authoritative decision at least by admitting the revision and by referring it to a larger Bench. Attention was invited to the observations of a Division Bench of the Madras High Court in P.R.M.A. Alagappa Chetti v. V.T.M. Muthia Chetti 6 MLJ 124. It is true that, in that case, it was held that an order about payment of Commissioner''s fee could not be executed as such, such fee was treated on a par with the fees paid to a counsel in a case. A similar view was expressed by a Division Bench of the Madras High Court in Venkatanarasimhulu and others v. Narasimhamurti and another 10 MLJ 341. It is to be noted that both these cases were with respect to sections 244 and 397 of the earlier Civil Procedure Code.

A similar view was expressed by a Single Bench in AIR 1926 Lahore 62a An opinion was expressed that such an order passed by the Court about payment of Commissioner''s fee could be made as costs in the suit, but no further opinion was expressed as to how the Commissioner was to execute this order which may be passed with reference to costs inter-parties. If this view were to be accepted, the position would be that the Commissioner for recovery of his fee would be required to resort to separate legal proceedings. To the same effect was the view exercised by a Division Bench of the Calcutta High Court in Lalit Mohan Banerjee v. Basdeo Narain Singh 21 IC 191. It is to be noted that this case also pertains to the earlier Civil Procedure Code.

However, section 36 of the Code of Civil Procedure, 1908, specifically provides that the provisions of the Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. In view of this provision in the present Code of Civil Procedure, there can be no doubt that all orders passed by the Court are executable just like decrees in so far as it may be practicable. It was for that reason that a Division Bench of the Patna High Court in Ramkeshwar Prasad v. Girja Prasad AIR 1957 Pat. 501 took the view that any order passed by the Court directing payment of Commissioner''s fee would be executable as an order by virtue of section 36, Civil Procedure Code. Their Lordships have discussed the question in all its aspects, particularly with reference to the provisions of the Code of Civil Procedure, 1908, as also the earlier CPC of the year 1382. The observations of their Lordships in paragraph 5 may usefully be reproduced as follows:

As Mr. Chaudhary has raised the question to the legality of the execution of the order in question, I should like to refer to some of the authorities which Mr. Chaudhary referred to and some which we had to discover for ourselves. He first referred to the case of Valji Harji v. Ravishankar Chhagantal AIR 1947 Sind 1. In that case, the facts are not given, and no reasons have been assigned as to why section 36 of the Code of Civil Procedure, which authorises execution of an order, should not apply. Section 36 of the Code reads as follows:

''The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.''

''Order'' has been defined as meaning ''the formal expression of any decision of a Civil Court which is not a decree.'' The present order of 26th September, 1947 does come within the definition of ''order'' and, therefore, the order is executable u/s 36. In the case of Chandra Kumar De Vs. Kusum Kumari Roy, some money was deposited as the remuneration of the Commissioner in a suit for partition, but the Commissioner did more work and he claimed more remuneration. After the Commissioner had done most of the work, neither party appeared before the Court, and the suit was dismissed for default of both the parties.

On the next day, the Commissioner applied to the Court for obtaining his remuneration, and an order was passed in his favour, and later he applied for execution of that order. It was held in that case that whatever may have been the view of the old law of 1882, section 36 of the present Code was much wider than the corresponding section 649 of that Code, and that the execution was properly levied u/s 36.

In Dharanidhar Ghose Vs. Janaki Nath Mukherjee and Others, the case in Chandra Kumar Dev. Kusum Kumari Roy was referred to, but it was held that an objection to such an execution of an order at the instance of the Commissioner was not covered by the provisions of section 47 of the Code at a question relating to execution, discharge or satisfaction of the decree did not arise in such a case, nor was the question raised between the parties to the suit, and the appeal was held incompetent. I think it is preposterous to suggest that a pleader Commissioner, an officer of the Court, after having done the work, as directed by the Court, should be relegated to another litigation for the purpose of getting his remuneration as a Commissioner. In my opinion, as I have already indicated, section 36 of the CPC makes such an order executable as decree. In that view of the matter, the appeal must be held as being without merit, and it must be dismissed with costs.

I am inclined to accept the view of the Division Bench of the Patna High Court in the laid case as it puts things on a rational basis. Whatever may have been the view under the Code of Civil Procedure, 1882, cannot be the correct view after the enactment of the CPC of 1908 wherein specific provision has been made making all orders of the Court executable as decrees. Therefore, with due respect to the learned Judges deciding the earlier cases mentioned above, I would respectfully follow the view expressed by the Division Bench of the Patna High Court in Ramkeshwar Prasad v. Girja Prasad (supra).

In view of the discussion aforesaid, the order under revision cannot be said to be illegal in any manner. There can be no impropriety in permitting a Commissioner to execute an order of the Court in respect of the Commissioner''s fee. However, that execution may now be rendered unnecessary in view of the fact that on the earlier occasion this Court on 10-7-1973 directed the petitioner to deposit Rs. 300 before being heard. The amount has been deposited on 19-7-1973. The Registrar will remit that amount to the trial Court for being disbursed in accordance with the order of the trial Court.

In the view that I take, this revision fails and is accordingly dismissed summarily without notice to the other side.