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S.A. Balagurumurthi Chettiar Vs. O.C. Muhammad Ismail and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1945Mad238; (1945)1MLJ320
AppellantS.A. Balagurumurthi Chettiar
RespondentO.C. Muhammad Ismail and ors.
Excerpt:
- - the following rules shall apply to all proceedings in execution, as well of decrees as of orders and in this chapter the word 'decree 'includes 'order. the word process has in law a well established legal meaning in its application to the commencement of the proceedings......of the court fees act, and in the schedule printed at page 225 of vol. i of the 2nd edition of the civil rules of practice and circular orders, the following scale is provided:in respect of sales, a fee by way of poundage on the purchase money calculated at one anna in the rupee on the first 350 rupees, half an anna in the rupee on any additional sum up to rs. 1,000 and quarter anna in the rupee on any additional sum above rs. 1,000.4. this schedule is preceded by the following rule, headed by the words ' process fees.'the following schedule of fees chargeable for serving and executing processes issued by the high court of madras in its appellate jurisdiction and by all civil and revenue courts established in the high court's appellate jurisdiction, having been framed by the high court.....
Judgment:

Byers, J.

1. This revision petition under Section 115 of the Code of Civil Procedure challenges the jurisdiction of the learned Subordinate Judge of Dindigul to levy poundage on the sale of property under the following circumstances.

2. The suit was brought to recover damages for a breach of contract by the defendants to purchase piece goods from the plaintiff on the allegation that the defendants refused to accept delivery and pay for the goods. After the issue of the Cloth Control Order the plaintiff filed an application for the sale of the goods through the Court and for this purpose he brought them into Court. No objection was offered and a member of the local bar was appointed to sell the property in the precincts of the Court. This was done and when the plaintiff applied to withdraw the proceeds of the sale, the learned Subordinate Judge held that poundage must first be deducted.

3. The levy of poundage is provided for by the rules framed by the High Court under Section 20 of the Court Fees Act, and in the schedule printed at page 225 of Vol. I of the 2nd edition of the Civil Rules of Practice and Circular Orders, the following scale is provided:

In respect of sales, a fee by way of poundage on the purchase money calculated at one anna in the rupee on the first 350 rupees, half an anna in the rupee on any additional sum up to Rs. 1,000 and quarter anna in the rupee on any additional sum above Rs. 1,000.

4. This schedule is preceded by the following rule, headed by the words ' Process Fees.'

The following schedule of fees chargeable for serving and executing processes issued by the High Court of Madras in its appellate jurisdiction and by all civil and revenue courts established in the High Court's appellate jurisdiction, having been framed by the High Court under Section 20 of the Court-fees Act, 1870, and confirmed by the Government of Madras and sanctioned by the Governor-General of India in Council, will come into force from the 1st day of July, 1884.

5. Mr. Sampath Aiyangar's contention is that an order issued to an advocate by the Court under Rule 197 of the Civil Rules of Practice and Circular Orders is not a process within the meaning of the rule and that the sale held by him in obedience to the Court's directions is not a sale which attracts the operation of Rule 200 under which poundage is payable. He argues that poundage is a fee levied for the remuneration of the officer conducting, the sale and that it originates from the fees chargeable by a sheriff for executing warrants and conducting sales. Nazirs and Deputy Nazirs, he rightly points out, are now remunerated by a monthly salary, so the poundage is appropriated by the Crown towards the cost of maintaining the nazarat establishments entrusted with the service of process and the execution of decrees. As the advocate appointed on this occasion under Rule 197 of the Civil Rules of Practice and Circular Orders receives for his labours the fee which is payable by the plaintiff after it has been fixed by the Court in accordance with the rule, Mr. Sampath Ayyangar's contention is that she necessity for poundage in a sale of this kind no longer exists because there is no function to be performed by the nazarat and because the receiver's or commissioner's fee has already been separately provided for. This argument ignores the concluding words in Rule 197 which must be read with the final sentence of paragraph 1 of Rule 200. After providing for fixing the remuneration of such a person appointed to hold the sale, the rule expressly states that:

such remuneration shall include all personal and travelling expenses, but not the expenses of the sale.

6. At the end of Rule 200, after providing for the method of paying poundage fees, the following direction is found.

The amount deducted or paid on account of poundage shall form part of the costs and expenses of the sale.

7. It is evident, therefore, that any remuneration paid to a person appointed to conduct the sale is exclusive of the poundage which, under Rule 200, is one of the expenses of the sale.

8. The next argument put forward by Mr. Sampath Ayyangar is that as Chapter IX in the Civil Rules of Practice and Circular Orders is entitled 'Proceedings in Execution', the rules for the levy of poundage can apply only to sales in execution of decrees. This is giving an unnecessarily narrow meaning to the word 'execution' and that the chapter does not relate solely to the execution of decrees is made clear by the wording of Rule 137 which is in the following words:

The following rules shall apply to all proceedings in execution, as well of decrees as of orders and in this Chapter the word ' decree ' includes ' Order.'

9. Mr. Sampath Ayyangar contends that there was no order of the Court which was being executed at the time, but this ignores the fact that the Court's direction for the sale of the property pending disposal of the suit was an order passed on an application by the plaintiff. The sale was therefore an order of the Court, and the subsequent direction to the person appointed to sell the property in pursuance of its order must be held to be a proceeding in execution.

10. The argument that an order directing the sale of property other than in execution of a decree is not a process within the meaning of Section 20 of the Court-Fees Act ignores the definitions of the word 'Process' in Wharton's Law Lexicon and Ramanatha Ayyar's Law Lexicon of British India. It will be sufficient to quote only those appearing in the latter volume as they are almost identical with the definitions given in the former. The learned author defines the word 'Process' at some length, but the following extracts are sufficient for our present purposes to show that it is not limited to the narrow sense of a summons or warrant.

The term ' process ' as a legal term has & very comprehensive signification. One of its definitions is that it is a writ, warrant, subpoena or other formal writing issued by authority of law. The word process has in law a well established legal meaning in its application to the commencement of the proceedings. It is used to designate the writ or other judicial means by which a defendant is brought into Court to answer a charge, though there may afterwards be issued, in the progress of the case, interlocutory and final processes : ' The term ' process ' includes any and every writ, rule, order, notice or decree including any process of execution that may issue in or upon any action, suit or legal proceedings. 'Judicial process ' in its largest sense, comprehends all the acts of the Court, from the beginning of the proceeding to its end. In a narrow sense, it is the means of compelling a defendant to appear in Court after suing out the original writ in civil and, after indictment, in criminal cases. In every sense, it is the act of the Courts. Any means of acquiring jurisdiction is properly denominated process. The term is sufficiently comprehensive to include an attachment, garnishment, or execution. All the steps taken in an execution, the seizure and the sale--are, in the natural meaning of the word, comprehended in the term ' process.'

11. These definitions read with the relevant rules in the Civil Rules of Practice and Circular Orders and the rules framed under Section 20 of the Court-Fees Act are sufficient to show that an order issued by the Court for the sale of property in its custody during the pendency of the suit either by the process establishment or by an officer specially appointed under Rule 197 of the rules is a process and that the sale is chargeable with poundage.

12. There is no error of jurisdiction and the petition is ordered to be dismissed.


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