1. The central point of dispute in this application is attorney's right of rateable distribution under Section 73 of the CPC, where he has attached in execution of an order for costs made in his favour under Rule 48 of Chap. 38 of the Original Side Rules. The application is made by the decree-holder plaintiffs for an order that the Sheriff of Calcutta do pay out of the sum of Rs. 2371/4/- being the nett amount lying in his hands out of the sale proceeds of two mud kothas at No. 59, Mechuabazar Street, Calcutta, belonging to the judgment-debtor after deduction therefrom the commission of the Accountant-General, payable to the plaintiffs' attorneys the costs of and incidental to the execution proceedings of the decrees dated 30-4-1948 and 4-4-1949, including those of levying their respective attachments and costs of all proceedings in connection with the sale of the attached properties and also of costs, of and incidental to this application and of costs to the suit resulting in the two aforesaid decrees and orders dated 9-7-1948, 29-3-1949 and 5-2-1952 and the amount of taxed costs of this suit of the plaintiffs and of the taxed costs of the guardian-ad-litem under the decree of 30-4-1948 and of the balanced taxed costs of Suit No. 224 of 1948 with interest and also of the amount of claim of Rs. 1900/- with interest of the plaintiffs in this suit in part satisfaction of the claim, and costs of the plaintiffs in this suit as well as in Suit No. 224 of 1948.

2. The other order that is sought is that Mr. M.S Mullick, attorney for two of the defendants Mrs. Razik and Sk. Mazim is not entitled to claim either priority over the decree-holder or participate in the rateable distribution under Section 73 of the CPC.

3. The main argument has centred round the right, if any, of Mr. Mullick, attorney for the said two defendants, to participate in the rateable distribution.

4. The facts giving rise to this application may be briefly recounted. This suit was filed on 25-2-1947, against the defendants for a sum of Rs. 1900/- as arrears of rent from July, 1945 to January 1947 at the rate of Rs. 100/- per month in respect of premises No. 7, Raja Dinendra Street, Calcutta. Mr. B.N Ghose, an attorney of this Court, was appointed the guardian-ad-litem of the minor defendants. An ‘ex parte’ decree was passed on 30-4-1943 against the defendants for Rs. 1900/- with interests and costs. The costs of the plaintiffs were taxed for the sum of Rs. 973/4/- with interest at 6 per cent per annum from 16-9-1948. The costs of the guardian-ad-litem was taxed for Rs. 206/3/6 with interest at a similar rate. The plaintiff Sm. Mani Manjuri Dassi died thereafter leaving the present applicants as the surviving plaintiffs and an order was made on 9-7-1948 permitting the applicants as surviving plaintiffs to proceed with the execution of the decree.

5. On 1-10-1948, the decree was executed by attachment of the right, title and interest of the defendant judgment-debtors in the two mud kothas standing on premises No. 59, Mechuabazar Street, Calcutta. Thereafter the first defendant Mrs. Razik entered appearance in this suit through Mr. M.S Mullick, an attorney of this Court, and applied for setting aside the ‘ex parte’ decree. An order was made on 29-3-1949, setting aside the ‘ex parte’ decree only as against defendant Mrs. Razik and costs of the said application were allowed to the plaintiff. The suit was thereafter heard and a decree was passed on 4-4-1949, against the said defendant Mrs. Razik for the same amount of Rs. 1900/- with costs. The costs of the plaintiffs as against this defendant Mrs. Razik have not yet been taxed. The decree-holders thereafter caused the Sheriff on 5-5-1950, to attach the right title and interest of defendant Mrs. Razik in the said two mud kothas in execution of the decree dated 4-4-1949.

6. Then the decree-holders applied for and obtained an order on 27-6-1949 for sale of the right title and interest of the defendants judgment-debtors 2 to 5 in the said two mud khothas. At this stage defendant 2 Sk. Mazim appeared through Mr. M.S Mullick and contested the application. A subsequent order was passed on 7-8-1950 for sale of the right title and interest of defendant 1 Mrs. Razik in the said two mud kothas in execution of the decree dated 4-4-1949 along with the right title and interest of the other judgment-debtors in the said two mud kothas. The Sheriff put up the said two mud kothas for sale in two lots on 23-11-1951. They were sold for Rs. 1425/- and Rs. 1300/- respectively aggregating to Rs. 2725/-.

7. Thereafter the judgment-debtors Mrs. Razik & Sk. Mazim applied for setting aside the sale, but such application was dismissed on 5-2-1952 with costs. Out of the sale proceeds of Rs. 2725/- the Sheriff has deducted a sum of Rs. 353/12/- for his poundage and charges and there is now lying ??? the hands of the Sheriff a sum of Rs. 2371/4/- as will appear from the certificate of the Sheriff.

8. Now in respect of these moneys realised in execution of the decrees dated 30-4-1948 and 4-4-1949 there are no other attachments except those of the decree-holders and the creditors referred to in the Registrar's certificate which is annexed to the petition marked with the letter ‘B’.

9. It is the contention of the plaintiffs decree-holders that they are the only creditors of all the judgment-debtors and the particulars of their claim are set out in para. 17 of the petition. Prom the certificate of the Registrar it appears that Mr. M.S Mullick, acting as an attorney for defendants 1 and 2, namely, Mrs. Razik and Sk. Mazim attached the right title and interest of his own clients the said two defendants in the said two mud kothas. Such attachment is in execution of pay orders obtained by Mr. M.S Mullick against his own clients the said two judgment-debtors.

10. The point now for determination is whether the attorney Mr. M.S Mullick can claim any priority over the decree-holders or participate in the rateable distribution under Section 73 of the CPC in the fund now lying with the Sheriff of this Court. The decree-holders contend that they are the only persons who are entitled solely and exclusively to the entire fund of Rs. 2371/4/- to the exclusion of the claim of the said Mr. M.S Mullick. It is also stated that the certificate of the Sheriff showing the persons who levied execution against the judgment-debtors shows what moneys have been received and when and also shows that he has no other assets belonging to the judgment-debtors as required under R. 39, Ch. 14 of the Rules of this Court.

11. On behalf of the decree-holder plaintiffs the argument is that Section 73 of the CPC applies in the case of persons who have made an application to the Court for the execution of “decrees for the payment of money” passed against the same judgment-debtor. It is said that an order for taxation obtained by an attorney against his own client is not a decree for the payment of money within the meaning of Section 73 of the CPC. In aid of this argument the definition of a decree in Section 2 of the CPC is invoked.

12. Rule 48 of Ch. 38 of the Original Side Rules of this Court provides that

“An attorney, where he has taxed his bill of costs against his client, may apply in Chambers on summons for an order against his client or the legal representatives of such client for payment of the sum allowed on taxation or such as may then remain due. The Judge on hearing the summons may make such order or refer the parties to a suit.”

13. Thereafter follow the significant words “Such order where made may be executed under O. 21 of the Code as a decree for money”. On behalf of the attorney it is contended, therefore, that he is in the same position as a decree-holder for money and he complies with the requirement of Section 73 of the CPC.

14. Mr. Sachi Guha, learned counsel for plaintiff decree-holders, has relied on the decision of — ‘Mohonlal Lalchand v. Bhivraj Debi Chand’, reported in AIR 1934 Nag 243 (A), for the proposition that the decree for payment of money must be a decree under the Code of Civil Procedure and not orders for payment of money which are executable, or in any event as in the Privy Council decision in — ‘Lyallpur Bank Ltd. v. Ramji Das’, reported in AIR 1945 PC 60 (B), under a statute like the Indian Companies Act where by its S. 199 all orders under the Companies Act are made enforceable in the tome manner as decrees. According to this argument R. 48 of Ch. 38 of the Original Side Rules is not such a statutory provision. My attention is also drawn to the wide terms of the language used in Section 199 of the Indian Companies Act which it is said is different from the language of R. 48 of Ch. 38.

15. Some reference to the rule-making power of the High Court is called for. Under Cl. 37, Letters Patent it is provided that it shall be lawful for this High Court from time to time to make rules or orders for the purpose of regulating all proceedings in civil cases which may be brought before such Court. There is a proviso to Cl. 37, Letters Patent which says that

“the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General in Council and being Act No. 8 of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.”

16. Section 122 of the CPC provides that this High Court may from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in Sen. 1. In other words, it is said that the rules in Sch. 1 can be altered but not the sections of the Code of Civil Procedure. It is also pointed out that by a specified reference to O. 21 of the Code, R. 48 of Ch. 38 excludes the application of specific sections of the Code.

17. I am unable to accept this argument that the sections of the Code of Civil Procedure, wherever relevant or applicable, are intended to be excluded by this reference only to O. 21 in R. 48 of Ch. 38.

18. In this connection Section 36 of the CPC is in my view relevant and decisive. This particular section appears in Part II of the CPC under the general heading of Execution. Section 38 provides:

“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.”

19. An order for taxation, therefore, will attract all the provisions of the Code so far as they are applicable. Now, an order is defined by the Code of Civil Procedure to mean the formal expression of any decision of a civil Court which is not a decree. It does not say that an order has to be one under the Code of Civil Procedure. It means that wherever there is a formal expression of any decision of a civil Court which is not a decree it is to be regarded as an order.

20. An order for taxation under Ch. 38, R. 48 of the Original Side Rules is a formal expression of the decision of this Court that a certain sum of money is due and payable to the solicitor by his client. That an order under this section need not be an order under the Code of Civil Procedure appears to have been also the view expressed by Kania J. in — ‘Kilachand Devchand & Co. v. Ajudhiya Prasad’, reported in AIR 1934 Bom 452 at p. 459 (C), where the learned Judge says “In my opinion S. 36 is not limited to orders made only under the Code.” I will add my reason to support this view by interpretation of the meaning of the words “Code” to include “rules” and S. 2(18) of the Code defines “rules” as meaning not only Rules and Forms contained in Sch. 1 of the Code but also those made under Ss. 122 or 125 of the Code. That brings in the Rules made by the High Court. The words “so far as they are applicable” in Section 36 of the CPC do not indicate in this case that an order for costs cannot attract the provisions of the Code or that there is any factor operating in such order which makes it inherently impossible to apply the provisions of the Code of Civil Procedure.

21. It has been contended before me on the authority in — ‘Parvathammal v. Chokkalinga’. reported in AIR 1918 Mad 389 (D), that an order under Section 34 of the Guardians and Wards Act has been held to be not an order under the Code of Civil Procedure. I am not impressed by the argument for this reason that the Madras authority proceeds on the view that an order under Section 34 of the Guardians & Wards Act directing a guardian to pay money out of his ward's estate for the marriage expenses of a person dependent on the Ward was neither a decree nor an order under the Code and cannot be enforced against the Ward after he had attained majority and guardian had been discharged. Besides there is nothing in the Guardians & Wards Act comparable to Rule 48 of Chap. 38 of the Original Side Rules which I have to consider in the present case.

22. The question can be examined from another point of view. Under R. 48, Ch. 38 as I have already stated, this Court may make an order for costs or refer the parties to a suit. Now, when the attorney is directed to file a suit and does file a suit and obtain a decree for his costs against his client, then in that case, on the basis of the decree-holder's contention the attorney will be entitled to rateable distribution because it will then be a full-fledged decree for payment of money within the meaning of S. 73 of the Code. But when instead of referring the parties to a suit under R. 48 the Judge makes an order for costs on the affidavits, then the attorney is said to lose his right to rateable distribution.

23. I see no justification for making this vital difference in the consequences. After all what R. 48 does is only to ensure a procedure of convenience and to make the process of realising costs less long drawn out than the recovery of a claim by ordinary action or suit. Shortening of the procedure should not, therefore, in my view mean loss of substantive rights in the benefits obtained. The benefits of either procedure should in my view be the same.

24. Lastly, it has been contended that an attorney should not be allowed to take the benefit of rateable distribution for costs against the judgment-debtor who is his own client. This argument requires careful formulation. It is said that Section 73 of the CPC embodies a principle of Insolvency Law which prevents scrambling among decree-holders for money trying to execute against the same assets of the same judgment-debtor. With the main idea I entirely agree.

25. What is then said is that in the suit where the decree-holder plaintiff has been awarded costs & the judgment-debtor defending is directed to pay such costs to the plaintiff decree-holder, the Court should ensure that in realising such decree which includes costs and which, therefore includes costs which the plaintiff had to incur in paying to his own solicitor the plaintiff decree-Holder should not be placed on the same footing with the judgment-debtor's solicitor and to compete with the order for costs made in the latter's favour and which are costs which the defendant had incurred in paying his solicitor in defending the suit and ultimately losing it. It is contended that to allow that will mean that the Court will be whittling down the scope of costs awarded to the successful decree-holder.

26. I have given my most anxious consideration to this problem. It appears to me that there is nothing intrinsically unsound from the point of view of fairness or of any juristic standards to allow the Attorney to participate in the rateable distribution. Prom the point of view of fairness, it must be emphasised that in ordering a party to pay his costs to his own solicitor for the service rendered by the solicitor the Court ensures a standard and quality of work in the interests of better administration of justice. In awarding costs to the successful plaintiff, it is quite true that the Court directs the defendant to pay the plaintiff's costs which must necessarily include the costs which the successful plaintiff had to pay his own solicitors. But that is consistent also with holding that the losing defendant should also pay to his own solicitor his own costs.

27. Both orders for costs, the order for costs awarded in favour of the successful plaintiff and the order for costs against the defendant to pay his own solicitors, are made in the interests of justice and fairness, and I see nothing in law or reason to hold that one should not be allowed to compete against the other against the same assets of the judgment-debtor. Then, again, from the point of view of the actual language used in Section 73 and Section 36 of the CPC read with O. 21 of the same Code and R. 48 of Chap. 38 of the Original Side Rules, the conclusion is clear that an Attorney holding an order for costs comes within the meaning of these provisions of law and procedure, and it will be in my view improper to deprive them of the benefits of such legal provisions. The decision, therefore, to allow the attorney to participate in rateable distribution is, I in my view, justified both by law and by the standards of fairness.

28. I therefore hold that Mr. M.S Mullick is entitled to participate in the rateable distribution of the monies in the hands of the Sheriff under Section 73 of the CPC. There will be no further order on this application. In the circumstances of the case and the point involved I make no order as to costs. Certified for counsel.

B/D.H.Z

29. Order accordingly.