1. A suit was filed by the Collector of Nasik, representing the Court of Wards, and on behalf of a certain ward, for redemption of certain lands under the Dekkhan Agriculturists' Relief Act. Preliminary issues were framed as to whether the plaintiff, the ward, was an, agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act; and whether he was otherwise entitled to the benefit of that Act. These issues were determined in the plaintiff's favour by the learned First Class Subordinate Judge. The defendant appealed to this Court contending that it should have been held that the plaintiff was not an agriculturist. We, however, were of opinion, that the learned Judge below was right, and we affirmed his finding that the plaintiff is an agriculturist within the meaning of the Act.
2. The question now involved is as to the basis upon which pleader's fees should be calculated in the defendant's appeal. The learned Government Pleader on behalf of the plaintiff has contended for the application of the second clause of Section 52 of Regulation II of 1827, while the Taxing Officer has taken the view that that Regulation does not apply, and that the fees must be assessed under Rule 65 of the Appellate Side Rules of this Court. That rule provides for the allowance of a sum of Rs. 30 in appeals where the provisions of Section 6 of Act I of 1846 and Section 52 of Regulation II of 1827- do not apply.
3. The question, therefore, first to be considered is, whether the case falls within the scope of Section 52 of the Regulation; That section consists of two clauses, whereof the first deals with the costs allowable in a suit, and the second with the costs allowable in an appeal. It is provided that in regard to the costs in a suit the pleader is to be entitled ' to a percentage on the amount sued for, according to the Rules specified in Appendix L, as a remuneration for his trouble in acting in behalf of his client, until the decree in the suit is passed, and thereafter until such decree is fulfilled.' The second clause lays down that the remuneration in respect of an appeal ' shall be the same as is above prescribed in the case of an original suit.' It is admitted that in the case of an appeal those words must be read as meaning not a percentage on the amount sued for, but a percentage on the amount forming the subject-matter of the appeal.
4. This then being the scope of Section 52, can it be said to govern such an appeal as the present? We think not. In the first place, the only question raised in this appeal was as to the status of the plaintiff, whether he was or was not an agriculturist within the meaning of the Dekkhan Agriculturists Relief Act; and we are of opinion that it cannot be said that any amount of money whatever could be allocated or described as the subject-matter of such an appeal. Secondly, Section 52 clearly contemplates the case of a decree which terminates the suit, for the remuneration is to be for the pleader's trouble in acting, not only until the decree in suit is passed, but also thereafter, until such decree is fulfilled. This, however, is a decree which did not and could not terminate the suit. Lastly, this particular kind of appeal is a creature of the recent Civil Procedure Code of 1908, as interpreted by this Court which has held that an order that a party is or is not an agriculturist; within the meaning of the Act amounts to a preliminary decree, and so requires the party aggrieved to appeal from it if he-wishes to contest it. No such appeal as the present was possible when the Regulation was enacted, and in our judgment the words of the Regulation cannot without undue straining beheld to cover the case of such an appeal or such a decree as we have here. But if Section 52 of Regulation II of 1827 has no application to this decree, then Section 7 of Act I of 1846 is equally inapplicable, and in these circumstances the case must inevitably be governed by Rule 65 of the Appellate Side Rules. It may be that this result is in some respect anomalous as furnishing inadequate remuneration for the labour and trouble which pleaders must incur in a particular class of cases. Our duty, however, is limited to administering the law as we find it, and if our decision leads to the anomaly which I have suggested, it will by no means be the only or the most serious anomaly of its class now existing.
5. We must, therefore, affirm the order of the Taxing Officer.