This is a rule, calling upon the opposite party, to show cause why the order of the Munsif, 1st Court, Patna, dated 11th March 1905, directing that a certain order for the payment of the fees of the Commissioner in this case should be enforced as a decree, should not be set aside.
The order in question is one directing that the Petitioner should deposit an additional sum of Rs. 250 for payment to the Commissioner. The learned Munsif has directed that this order should be executed as a decree by attachment and sale of the property of the Petitioner.
In our opinion the order should not be executed as a decree, because the Code of Civil Procedure does not provide for the issue of any judicial process for realization of the amount so ordered to be paid by one of the parties. Under sec. 397, C.P.C, it is provided that the order for the payment of the costs of the commission should be passed before the issue of any commission. But, if the work is in excess of the amount paid in for the costs of the commission then clearly the proper thing for the Court to do, if the party at whose instance the commission was issued, will not pay, is to make that amount costs of the suit and enter it in the decree. But it cannot be realized unless it is entered in the decree.
The learned pleader for the opposite party relies on sec. 649, C.P.C, which lays down that the rules contained in Chap. XIX, shall apply to the execution of any judicial process for the payment of money which may be desired or ordered by a Civil Court, in any civil proceeding. But the objection to applying sec. 649 to the order passed in this case is that sec. 397 does not provide for the issue of any judicial process for realization of the costs of a commission. We therefore make this rule absolute. But we pass no order as to costs.
N.G
Rule made absolute.