Shrikant Bhanushanker and Another vs Memon Bai Mariam Habib of Veraval

Chhatpar, J.—This is a revision application u/s 25, Provincial Small Cause Courts Act to revise a decree dismissing a suit of the applicants.

The applicants were commissioner appointed in a suit filed for partition of joint property by one Havabai against Mariam, the present opponent

and some other parties. A preliminary decree was passed and one Liladhar Madanji was appointed a commissioner to make partition, but it

appears that this commissioner did not do any work and at the agreed suggestion of the advocates of the parties the present two applicants were

appointed as commissioners. They submitted their report on 2-12-1950 on the partition effected by them claiming their remuneration at three per

cent, on the value of the property partitioned. On this report, the parties were heard and the Court passed an order granting their prayer for

remuneration. Their remuneration was fixed at Rs. 1350/- out of which Rs. 150/- had already been deposited in Court. The amount of the

commissioners'' fees allowed was ordered to be borne by the parties in proportion to their shares. The proportion of the amount which was to be

paid by the present opponent-Defendant was Rs. 168-12-0. The commissioners filed an application before the Court, which had appointed them

as commissioners for execution against the present opponent for recovery of this amount. Various defences were raised, one of which was that the

order fixing the fee could not be executed. The Court referred the commissioners to file a separate suit for recovery of their commission fees, there

being a conflict of decisions of various High Courts whether such an order of the Court could be executed or should form the subject-matter of a

separate suit. The commissioners consequently had to file the present suit for recovery from the opponent. The learned Small Causes Court judge

dismissed the suit on two grounds; first, that under Order 26, Rule 15, Code of Civil Procedure, the amount of the commissioners'' fees should

have been deposited in advance in the suit itself and no further claim can be made for any further remuneration. The second ground was that the

nature of the work done by the commissioners was not such as would warrant payment of such exorbitant fees. The-learned Judge, however, did

not at the same time fix what should be the reasonable remuneration for the work done by the commissioners, but dismissed the suit. The

commissioners have now come in revision against this order.

I have heard the learned advocates for the parties. Order 26, Rule 15, CPC says: ""Before issuing any commission under this order, the Court

may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party

at whose instance or for whose benefit the commission is issued"". It ordinarily contemplates commission expenses to be deposited in advance

before the commissioners have started their work for executing the commission. But it has been held that the Court has inherent power to order

any further remuneration and I may refer to the Full Bench decision of the Sind Court in-Valji Harji v. Ravishankar AIR 1947 Sind 1(A), in

support thereof. In the present case the commissioners were appointed with the consent of the parties. The commissioners had submitted their

report claiming their remuneration on which the parties were heard and the final decree was passed; so that it cannot be contended and Mr.

Chhaya the learned advocate for the opponent does not contend that the fixation of the commissioners'' fees by the Court which passed the final

decree was without jurisdiction. There is some conflict of rulings whether an order in favour of the commissioners is capable of execution. This

question is not before me at present, as the execution application was filed and the Court has decided it referring the commissioners to file a

separate suit. The present suit has, therefore, been filed on the assumption that the order could not be executed. The opponent resisted the claim of

the commissioners, firstly on the ground that the appointment of the commissioners was not for her benefit, but it is not disputed that the opponent

did get benefit under the decree in the shape of getting a share in the joint property. So it is not open to the Defendant to contend that the

appointment of the commissioners was not for her benefit. In a suit for partition, everyone of the parties who claims a share or to whom a share has

been allotted, is similarly interested with every other party. The second contention was as regards the quantum of remuneration. The learned Judge

has written a very exhaustive judgment, but he has failed, to consider seriously the question whether he had at all any jurisdiction to override a

decision given in the previous suit of partition, wherein a Court of competent jurisdiction fixed the remuneration after hearing the parties. In my

opinion he had no jurisdiction. In this connection I may refer to commentary of Chitaley and Rao on their CPC (1951 Edn.) at page 2844, which

says: ""The reduction or disallowance of a commissioner''s bill is a matter for the trial Court. The Court will not be justified in re-opening or reducing

the fees fixed in the presence of the parties and paid into court"". The cases cited by the learned commentators are those, wherein fees were

questioned before the same Court and it was held that the Court should not lightly interfere with the order already passed nor should a higher

Court of appeal or revision lightly interfere with it. The proper Court to decide the amount of the work done is that Court. A fortiori the Court of

Small Causes before whom the present suit was filed, was bound by the decision given in the suit for partition. The learned Judge has exceeded

jurisdiction in going into the quantum of remuneration and as a matter of fact he has not given any decision what should be the reasonable

remuneration.

Under the circumstances, the decree of the lower Court is set aside and the suit of the Plaintiffs is decreed. The applicants will have their costs

throughout from the opponent.