1. The question asked is whether Section 17, Regulation V of 1816, is still in force. The section provides that an application to a Zila Court for execution of the decision of a village panchayat shall be written on a stamp of the prescribed value and presented by the parties in person, 'or by an authorized vakil of the Court' to whom a fee of 4 annas of a rupee shall be allowed and no more, and such application shall not be subjected to any other charge whatever.' Such special and emphatic language cannot be deemed to have been abrogated, unless it has been expressly repealed, or there is some later law or order having the force of law from which the intention to repeal it can be gathered by the clearest implication.
2. Regulation XIV of 1816, passed only five months later, certainly did not repeal it. The District Judge is not quite correct in saying that Section 39 of that Regulation expressly saves it, because that section says no more than that the Regulation XIV is not to apply to vakils employed...before panchayats. Section 25 of Regulation XIV contains a schedule of fees to be allowed in regular suits, but the regulation nowhere deals with the costs of execution.
3. Act I of 1846 professed to deal with the whole law relating to pleaders. As between pleader and client it introduced perfect liberty of contract, but it preserved the old schedule contained in Section 25, Regulation XIV of 1816, for the purpose of regulating costs as between party and party. The concluding clause of Section 7 for the first time dealt with the costs of execution generally, by providing that, 'when costs are awarded in other cases' than regular suits, 'the amount to be paid on account of such fees shall be one-fourth of what it would have been in a 'regular suit.' Section 13 re-enacts Section 39 of Regulation XIV, but we have already seen that this applied only to vakils employed...before panchayats? and not to vakils of Zila Courts employed in such Courts to execute the decisions of panchayats. It appears to us, however, that the special provisions of Section 17, Regulation V of 1816, were not abrogated by Act I of 1846. That Act, professing to deal with the whole subject, repealed a great variety of sections in various regulations, but no part of Regulation V of 1816. Section 17 therefore has not been expressly repealed and its special rule seems to have been intended to remain In force as an exception to the general rule. The fact noted by the District Judge that it is not shown as obsolete in Act XII of 1876, confirms this view : not only is the whole section net shown as one that had been repealed, but parts of the section, not material to the present question, are explicitly repealed.
4. Precisely the same reasoning applies to the Legal Practitioners' Act (XVIII) of 1879, and the rules made under Section 27 thereof; and it is worthy of remark that the High Court, before making rules, considered it necessary to have the schedule in Section 25, Regulation XIV of 1816, repealed, while no step was taken to repeal Section 17, Regulation V of 1816. The reason stated was that the former Pleaders' Act, 1865, had contained a clause that, on its extension to a province, the provisions of all regulations inconsistent with, or repugnant to, it should cease to have effect, but that Act XVIII of 1879 contained no such provision--See Bill I of 1882, Fort St. George Gazette, 18th January 1882, and the High Court's letter quoted by the mover, ibid, 23rd February 1882; also Madras Act II of 1882.
5. It seems doubtful, therefore, if the High Court have the power by any rules to supersede an express enactment, but even if they have the power we do not think that they intended to exercise it. Under the powers conferred by Section 27 of the Act they laid down scales of fees for various proceedings, and among others for miscellaneous cases, including proceedings in execution of decrees.' A decision of a panchayat is not a decree, and we do not think, especially after their notice of the omission of the general repealing clause contained in the Act of 1865, that the High Court intended to include in the general term ' miscellaneous proceedings,' any proceeding for which special provision had been made in any unrepealed enactment.
6. Our answer to the question is that Section 17, Regulation V of 1816, has not been rescinded but is still in force.