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Sreeman Rai Kissenji Vs. Sri Kissen Mackar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal26
AppellantSreeman Rai Kissenji
RespondentSri Kissen Mackar
Cases ReferredIn Kasiswar De v. Aswini Kumar Pal
Excerpt:
- .....should realize his poundage from anybody else or by any other proceedings or that the amount of poundage claimed is incorrect. the only question for decision therefore is whether in the circumstances related above the sheriff is at law entitled to poundage. the nature of the right of the sheriff to poundage has been elaborately discussed in a.d. pickford v. janoki nath roy (1921) 8 a.i.r. cal. 763. the sheriff has no common law right to reward for executing a writ. the sheriff is riot engaged by the litigant to realize the decree. there is no privity between the sheriff and the litigant. the latter applies to the court for the enforcement of its own decree and it is the court that employs the sheriff as one of its officers to enforce its orders. if the sheriff is to be remunerated for.....
Judgment:
ORDER

Sen, J.

1. The only point for determination in this application is whether the Sheriff of Calcutta who attached certain property pursuant to a precept issued to this Court by a Court at Benares is entitled to poundage, the claim under the decree having been satisfied on a compromise entered into after such attachment. One Eai Kissenji brought a suit against the petitioner in the Court of the Civil Judge at Benares and got a decree for over two lacs of rupees. Thereafter the decree-holder applied under Section 46, Civil P.C. to the Court at Benares for the issue of a precept to this Court for the attachment of certain property belonging to the petitioner at Calcutta. The precept was issued and under orders of this Court the Sheriff attached the properties some time in January 1938. As an attachment under a precept lapses after the termination of two months the period of attachment was extended from time to time. In the meantime the decree was transmitted to this Court for execution, but no application for execution was made in this Court. In December 1938, while the attachment was still subsisting the decree-holder and the judgment-debtor entered into a compromise whereby inter alia the judgment-debtor agreed to pay the decree-holder the sum of Rs. 1,05,000 in full settlement of the decretal dues by 1st March 1939. The judgment-debtor also agreed to pay to the decree-holder all costs incurred by the decree-holder from and after 19th December 1938. The sum agreed upon as liquidating the decretal dues was -paid within the stipulated time and a sum of Rs. 3000 has been deposited in payment towards costs with the solicitor of the decree-holder. On 20th March 1939, the. attachment ceased to exist as no further application was made to extend the period of the attachment. The Sheriff however refuses to release the property on the ground that his poundage has not been paid. The petitioner has therefore applied for an order for the release of the attachment upon payment of only the actual costs incurred by the Sheriff without poundage.

2. The contention of the Sheriff is that as the compromise has been effected and the amount under the compromise has been realized as a result of or at any rate under pressure of the attachment levied by him he is entitled to a poundage under the rules of this Court. On behalf of the petitioner the contention broadly put is that as the attachment has not been effected in execution proceedings it cannot be said that the amount has been realized as a result of any action by the Sheriff in execution and that therefore the Sheriff is riot entitled to poundage. Learned Counsel on behalf of the petitioner states that his client is perfectly willing to pay the Sheriff his poundage if it is held that the Sheriff is entitled to the same and that he is not going to contend that the Sheriff should realize his poundage from anybody else or by any other proceedings or that the amount of poundage claimed is incorrect. The only question for decision therefore is whether in the circumstances related above the Sheriff is at law entitled to poundage. The nature of the right of the Sheriff to poundage has been elaborately discussed in A.D. Pickford v. Janoki Nath Roy (1921) 8 A.I.R. Cal. 763. The Sheriff has no common law right to reward for executing a writ. The Sheriff is riot engaged by the litigant to realize the decree. There is no privity between the Sheriff and the litigant. The latter applies to the Court for the enforcement of its own decree and it is the Court that employs the Sheriff as one of its officers to enforce its orders. If the Sheriff is to be remunerated for such services it is a matter between the Court and the Sheriff with which the litigant has no direct concern. If the Court or the Legislature consider that the Sheriff should receive remuneration it is for those authorities to make provision by rule or statute for such remuneration, and in doing so they may undoubtedly levy fees on the litigant. Such rule or statute being a taxing rule or statute must be strictly construed so as to guard against any enlargement of its scope to the detriment of the subject who but for such rule or statute would be under no liability to pay. So far as this Court is concerned, poundage is a charge authorized by items 22 and 23 of Rule 77 of Chap. 36 of the rules of this Court. 'We are concerned in this case with item 22 which is as follows:

The fees allowed to the Sheriff and his officers shall be as follows : Poundage on sums levied by the Sheriff in execution or in the event of the claim being satisfied, compromised or settled, upon the amount of such satisfaction, composition or settlement for the first Rs. 1000 at 5 per cent, and for the next at 2 per cent.

3. It will be noticed that there are two parts to the rule, one part deals with the case where a sum is levied by the Sheriff in execution of a decree and the other with the case where the parties settle the claim. The Sheriff is said to levy a sum when he realizes it by converting the property seized by him into money or when he receives the sum from the judgment-debtor who wishes to avoid or lift the attachment. We are not concerned with the first part of the rule as no sum has been levied by the Sheriff. We are concerned with the alternative portion of the rule, viz., when the claim has been settled. This portion of the rule has been explained, if I may say so with respect, very clearly by Rankin J. in the case mentioned above. In explaining the words 'the claim' he says that they do not mean any and every claim which one party may have against the other but the particular claim which was the subject-matter of execution. In other words, the claim must be one in respect of which the Sheriff took steps in execution under the first part of the rule. In this view he held that where subsequent to an attachment before judgment the parties compromised the claim the Sheriff was not entitled to poundage inasmuch as the attachment before judgment was not an attachment for the purpose of levying a sum in execution but an attachment made merely for the purpose of preserving the property 'in media' pending the decision of the suit and inasmuch as the claim settled was not one in respect of which execution had been levied.

4. Thus, there are two sets of circumstances under which the Sheriff can get poundage (a) where the Sheriff levies a sum in execution and (b) where the claim in respect of which the Sheriff has taken steps to levy a sum in execution is satisfied, compromised or settled. It is clear that the alternative portion of the rule is not independent of the first portion : the Sheriff is not entitled to poundage under the second portion of the rule unless he has taken steps under the first portion of the rule with a view to levying a sum in execution. Now in. this case what has been done by the Sheriff? Has he taken any steps to levy a sum in execution? In my opinion he has not. The attachment is one under Section 46, Civil P.C. Under that Section upon application by the decree-holder in proper circumstances the Court, which passed the decree, will issue a precept to another Court to attach certain property belonging to the judgment debtor pending orders for execution of the decree. The attachment is made not for the purpose of converting the property attached into money for the realization of the decree but for the purpose of keeping the property of the judgment-debtor 'in medio' until the decree can be executed. It is similar to an attachment before judgment in this sense. It is not an attachment in execution but an attachment before execution.

5. After there is an attachment pursuant to a precept under Section 46, Civil P.C. further steps have to be taken before the decree can be executed. First there must be an application under Section 39 of the Code to the Court which passed the decree for transmission of the decree to the Court which is to execute the decree. Then there must be an application for execution of the decree to the Court to which the decree has been transferred and the application must be in tabular form as provided in Order 21, Rule 11, Civil P.C. when the executing Court is not the High Court. If the Court to which the decree has been transferred is the High Court then the application for execution must be in Form I of the rules of this Court and must contain in addition to the particulars mentioned in Order 21, Rule 11 certain other particulars (vide Chap. 17, Rule 10 of the Original Side Rules). It is thus clear that after an attachment under a precept there must be an application for execution in the proper form and it is only upon such application that execution can issue. The order issuing a precept is therefore not an order directing execution and the attachment under a precept is not an attachment in execution proceedings. In Kasiswar De v. Aswini Kumar Pal (1926) 13 A.I.R. Cal. 249 it was held that an application for an attachment under Section 46, Civil P.C. cannot be regarded as an application for execution. This was a case regarding rateable distribution but the principle underlying this view applies.

6. In the present case, although the decree has been transferred to this Court there has as yet been no application for execution. Learned Counsel for the Sheriff draws my attention to the fact that Section 46, Civil P.C. is to be found in a portion of the Code entitled 'Execution' and he argues that the attachment is really an attachment in execution. In my opinion the fact that the attachment has been made in accordance with the provisions of a Section appearing in a portion of the Code entitled 'Execution,' does not make the attachment an attachment in execution. This portion of the Code deals with matters leading up to execution as well as with matters regarding execution itself. The attachment under Section 46, Civil P.C. is merely a step taken to facilitate execution; it is not a step taken in the proceedings in execution. As stated before, the Sheriff's right to poundage is a right granted by the provisions of Rule 77 of Chap. 36 of the Rules of the Original Side of this Court; in my view, that rule comes into operation only when the Sheriff has taken steps to levy sums in execution of a decree. I have held that no such steps have been taken in the present case. The Sheriff is therefore not entitled to any poundage. The result is that the application must be allowed with costs.


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