Sinha, J.:— This is an appeal by defendants 10 to 16 to a partition suit against an order dismissing their application for amendment of the executable order passed in favour of the pleader commissioner.
2. In a suit for partition, a preliminary decree was passed, and, after the preliminary decree, a pleader commissioner was appointed to make takhtabandi. It appears, after the takhtabandi had been made, the appellants filed certain objections to the report of the pleader commissioner, and, thereupon, the Court ordered reshuffling of the allotment, but directed that the cost of the same will be entirely borne by these appellants. After that, the appellants were directed to deposit a sum of Rs. 1,200/- as commissioner's fee.
3. They deposited Rs. 1,200/-; but as the final bill of the commissioner was passed for Rs. 2,187/-, the Court, by order dated 28th March, 1947, directed the appellants to deposit the balance, namely, Rs. 987/-. The report of the pleader commissioner was confirmed on 30th June, 1947. It appears, the pleader commissioner submitted another bill for Rs. 200/-, and a third, one for Rs. 32/-. On 26th September, 1947, the Court consolidated all the pending bills of the commissioner, according to which these appellants had to pay a sum of Rs. 1,219/-, and the Court passed the bill of the commissioner for Rs. 1,219/-, and directed that the defendants 10 to 16 should pay the amount within a month from that date, failing which the pleader Commissioner was to realise the amount by execution together with future interest at 6 per cent, per annum from the date of the order, namely, 26th September, 1947. The money not having been paid, the pleader commissioner took out execution sometime in the year 1949. Thereafter, these appellants filed an application on 20th December, 1950, which was headed as being one under Sections 47 and 151 of the CPC, with a prayer which I would like to quote:
“Therefore the petitioners request your honour to order the amendment of the executable order in favour of the learned Commissioner B. Girja Pd. and hope that your honour will kindly do so for which the humble petitioners shall ever pray.”.
4. The objection, therefore, per se, is not an objection to the executability of the order but to the amount mentioned in the order. This objection was heard and decided against the appellants on 25th August, 1952, and hence this appeal.
5. Mr. Saran, learned Counsel appearing on behalf of the respondent, has raised a preliminary objection that no appeal lies to this Court. Mr. Chaudhary, on behalf of the appellants, has submitted that appeal lies under Section 47 of the CPC. He further submits that the order passed by the Court below on 26th September, 1947 was an order which could not have been executed in law; and that, if the pleader commissioner wanted payment of the money, as mentioned in that order, he should have instituted a suit.
6. I think, the preliminary objection is not without substance. Appeal can possibly lie only under Section 47 of the CPC, if that section has any application. It is, however, obvious that S. 47 has application only where questions arise between the parties to the suit in which the decree was passed or their representatives, and relating to execution, discharge or satisfaction of the decree. In this case the pleader commissioner was not a party to the suit, and the questions raised are not questions in regard to execution, discharge or satisfaction of ‘the decree’. In that view of the matter, in my opinion, S. 47 has no application.
7. The answer given by Mr. Chaudhary is that S. 47 was the section mentioned under which the appellants had filed the objection. There is no doubt that S. 47 is mentioned as one of the sections under which the application was made; but merely because of drat label, no legal significance can possibly be attached to that petition as a petition under S. 47. This is apparent also from the fact that the prayer made in the petition is not a prayer in regard to execution, discharge or satisfaction of the decree; the prayer made in the application is only to the extent that the amount of the commissioner's bill should be reduced or that it should not have been passed for the amount for which it was passed. In that view of the matter, no appeal lies.
8. 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 (A). In that case, the facts are not given, and no reasons have been assigned as to why Section 36 of the CPC, 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.”
9. ‘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 under S. 36. In the case of Chandra Kumar De v. Kusum Kumari Roy, AIR 1925 Cal 57 (B), 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.
10. 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, S. 36 of the present Code was much wider than the corresponding S. 649 of that code, and that the execution was properly levied under S. 36.
11. In Dharnidhar Ghose v. Janaki Nath, AIR 1947 Cal 18 (C), the case in AIR 1925 Cal 57 (B), 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 S. 47 of the Code as 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 all order executable as decree.
12. In that view of the matter, the appeal must be held as being without merit, and it must be dismissed with costs.
13. Dayal, J.:— I agree.
H.G.P
14. Appeal dismissed.
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