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Bai Jayagavri Vs. Ramanlal Chhotalal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 164 of 1922
Judge
Reported inAIR1924Bom302; (1924)26BOMLR187; 79Ind.Cas.749
AppellantBai Jayagavri
RespondentRamanlal Chhotalal
Excerpt:
bombay pleaders act (xvii of 1920), section 23--execution proceedings--pleader's fees--bombay regulation 2 of 1827, section 52.;in an application to execute a decree passed in an appeal pending at the time the bombay pleaders act came in force, the pleader's fees are to be taxed as provided in that act. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a..........the appeal was dismissed with coats. the respondent then presented a darkhast in the first class subordinate judge's court to recover the costs awarded to the respondents in appeal no. 419 of 1920. the costs, it appears, were paid but the darkhastdar asked for the costs of the darkhast on the ground that he was entitled to such costs under bombay act xvii of 1920. by section 18(1) of the act, where costs are awarded to a party in any proceeding, the amount of the pleader's fee to be taxed in the bill of costs as recoverable by such party, if represented by a pleader, from his adversary, shall be computed in accordance with the rules in schedule iii unless such fee has been settled under the provisions of section 17 for a lesser amount in which case no more than such lesser amount shall.....
Judgment:

Norman Macleod, Kt., C.J.

1. Suit No. 211 of 1919 filed in the Court of the First Class Subordinate Judge of Broach was dismissed with costs. The plaintiffs presented in November 1920 Appeal No. 419 of 1920 in the Bombay High Court. The appeal was dismissed with coats. The respondent then presented a Darkhast in the First Class Subordinate Judge's Court to recover the costs awarded to the respondents in Appeal No. 419 of 1920. The costs, it appears, were paid but the Darkhastdar asked for the costs of the Darkhast on the ground that he was entitled to such costs under Bombay Act XVII of 1920. By Section 18(1) of the Act, where costs are awarded to a party in any proceeding, the amount of the pleader's fee to be taxed in the bill of costs as recoverable by such party, if represented by a pleader, from his adversary, shall be computed in accordance with the rules in Schedule III unless such fee has been settled under the provisions of Section 17 for a lesser amount in which case no more than such lesser amount shall be recoverable.

2. Under Schedule III, Clause IV, in execution proceedings the pleader's fee to be allowed shall be one-fourth of the fee calculated at the rates specified in Rule 1 on the amount or value of the relief or money claimed in the application to execute the decree.

3. The claim of the respondents to have the costs of the Darkhast taxed and awarded in this fashion was disallowed by the Subordinate Judge on the ground, we take it, that when the appeal was filed the question of the pleader's fee was governed by Regulation II of 1827, and as Section 52 of the Regulation contemplated that in execution proceedings no fresh pleader's fee could be awarded since the pleader was retained not only till the disposal of the suit or appeal but until the decree was fulfilled, therefore under Section 33 of Bombay Act XVII of 1920 this Darkhast was a proceeding pending in the Court at the commencement of the Act, and as such pending proceeding it should be governed until its final disposal by the Court in which it was pending in respect of such matters, by the laws and rules in force immediately before the commencement of the Act. What was pending at the commencement of the Act was Appeal No. 419 of 1920, and it is even doubtful whether the respondent seeking execution for the costs of the appeal would not have been allowed separate pleader's fees under the Regulation. However it is not necessary to consider that, because we think that this Darkhast was a proceeding instituted after the commencement of the Act, and it cannot be treated as a proceeding pending in the Court of the Subordinate Judge at the commencement of the Act. It would follow then that under Section 18(1) of Bombay Act XVII of 1920, the respondent would be entitled to the fee prescribed under the third Schedule. Therefore the appeal must be allowed. We now make the order which should have been made by the Subordinate Judge that the appellants in Appeal No. 419 of 1920 should pay the costs of the Darkhast, and they must also pay the costs of this appeal.


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