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Shaikh Fazal Ellahi Vs. Shree Krishna Makkar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal369
AppellantShaikh Fazal Ellahi
RespondentShree Krishna Makkar and anr.
Cases ReferredPickford v. Janoki Nath Roy
Excerpt:
- .....at benares which was headed:precept (section 46) : in the court of the additional civil judge, benares : execution case no. 79 of 1937 : original case no. 84 of 1931: shriman ral krishnaji - plaintiff-decree-holder v. srikrishen mackar - defendant-judgment-debtor.it states in the operative part:on the motion of the decree-holder it is ordered that this precept be sent to the registrar, high court of judicature at port-william in bengal under section 46, civil p.c. 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application which may be made by the decree-holder for execution of the decree. the attachment should be made subject to the limitations put in order enclosed.3. in the schedule annexed was a list of properties;.....
Judgment:

Derbyshire, C.J.

1. This is an appeal against an order of Sen J., made on 29th May 1939 reported in in : AIR1940Cal26 , whereby he adjudged that the Sheriff was not in the circumstances entitled to any poundage. The Sheriff claimed poundage under Rule 77, Ch. 36 of the Rules of the Original Side of this Court which states:

The fees to be allowed to the Sheriff and his officers shall be as follows:

22. 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, compromise or settlement for the first 1000 rupees at 5 per cent, and for the rest at 2 1/2 per cent.

2. The facts which led up to the claim were as follows: The decree-holder was the plaintiff in Suit No. 84 of 1931 in the Court of the Civil Judge of Benares, and on 1st June 1937, he obtained a decree against the judgment-debtor, who is the respondent in this appeal, for a sum of over two lacs of rupees. On 22nd January 1938, a precept was issued by the Court at Benares which was headed:

Precept (Section 46) : In the Court of the Additional Civil Judge, Benares : Execution Case No. 79 of 1937 : Original Case No. 84 of 1931: Shriman Ral Krishnaji - Plaintiff-Decree-holder v. Srikrishen Mackar - Defendant-Judgment-debtor.

It states in the operative part:

On the motion of the decree-holder it is ordered that this precept be sent to the Registrar, High Court of Judicature at Port-William in Bengal under Section 46, Civil P.C. 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application which may be made by the decree-holder for execution of the decree. The attachment should be made subject to the limitations put in order enclosed.

3. In the schedule annexed was a list of properties; it included premises No. 15, Banstolla Street, Calcutta, known aa 'Mackar House' and all the moveablea therein including cash, ornaments, jewelleries, furniture, household effects, motor cars and also a share in the Calcutta Stock Exchange. The precept was signed by the Additional Civil Judge of the Court at Benares. Consequent upon that precept, the Sheriff attached the premises concerned and the property mentioned. In particular he sealed up two iron safes belonging to the judgment-debtor situated in the house. No further application for execution was made, but the precept was extended by orders of the Benares Court at the end of two months and every subsequent two months until 20th March 1939. The respondent, who was the petitioner before Sen J., stated in his petition that:

In the meantime the decree has been sent to this Court (i.e. the Calcutta High Court) for execution. But no application has been made in this Court for execution as yet.

4. That petition was filed on 2nd May 1939. In the meantime, in December of 1938 the respondent in this appeal, namely the judgment-debtor, came to terms with the decree-holder; the terms of that compromise were filed in the Court at Benares. By those terms the judgment-debtor agreed to pay to the decree-holder the sum of Rs. 1,05,000 in full settlement of tha decree-holder's claim by 1st March 1939. On 15th March the Additional Civil Judge at Benares wrote to the Registrar of the Original Side of this Court as follows:

I have the honour to inform you hereby that the Execution Case noted above (i.e. Exeoution Case No. 79 of 1937) has been struck off after full satisfaction of the decree, the attachments effected by this Court on the properties both moveable and immovable of the judgment debtor Shri Kishen Mackar as detailed in the original precept of this Court are hereby withdrawn. This may kindly be noted and the needful may be done.

5. The Sheriff refused to withdraw the attachment until his charges under Order 36, Rule 77, item 22 (set out above) which amounted to Rs. 2640 had been paid. In consequence of this refusal the present respondent judgment-debtor took proceedings before Sen J., who, relying on the case in Pickford v. Janoki Nath Roy (1921) 8 A.I.R. Cal. 763 held that the Sheriff was not entitled to any sum by way of poundage or otherwise under Ch. 36, Rule 77, item 22 and ordered the Sheriff to withdraw the attachment. The Sheriff withdrew the attachment, but appealed to this Bench. It has been contended before us that Order 36, Rule 77, item 22 has no application to the circumstances of this case because no execution proceedings were pending when the Sheriff attached the property concerned. In my view, there clearly were execution proceedings in this case and a precept for the attachment of the property was one of the steps taken in those execution proceedings. Mr. Bose has argued that the precept was something quite independent of any execution proceedings. I cannot agree. The precept itself is headed 'Execution Case No. 79 of 1937: Original Case No. 84 of 1931.' I cannot do otherwise than infer from that, that the precept was a step in the execution proceedings which had been started entitled Execution Case No. 79 of 1937.

6. Also, there is the letter of the Additional Civil Judge of Benares stating that the above case, No. 79 of 1937, has been struck off after full satisfaction of the decree. To execute a decree means to carry it into effect by legal process. It seems quite clear that the sending of the precept to this Court by the Benares Court was something done towards carrying into effect the decree of the Benares Court for two lacs odd rupees given in the original case No. 84 of 1931. Consequently, when the claim was compromised for Rs. 1,05,000 it was compromised in the course of execution proceedings; the second part of item 22, namely

in the event of the claim being satisfied, compromised or settled, poundage shall be paid upon the amount of such satisfaction, compromise or settlement for the first 1000 rupees at 5 per cent., and for the rest at 2 1/2 per cent.,

applied, and therefore the Sheriff is entitled to the sum which he has claimed. It seems to me that the learned Judge misread the case in Pickford v. Janoki Nath Roy (1921) 8 A.I.R. Cal. 763. That was a case where A filed a suit against B for about 8 1/2 lacs and subsequently applied for attachment before judgment of certain moneys belonging to B and got an order for interim attachment which the Sheriff effected. Thereafter a settlement was arrived at, and the order nisi was discharged and the interim attachment was withdrawn by consent. It was held that the Sheriff who claimed Rs. 21,900 as poundage under the item now in question, namely item 22 of Ch. 36, Rule 77, was not entitled to such poundage. Rankin J., as he then was, giving judgment said at p. 677:

The rule does not give the Sheriff a commission upon the settlement of every man's claim or even upon the settlement of every claim made in a suit. So much is admitted. The definite article (i.e. the word the in Article 22) can only be intended with reference to the preceding words of the provision. The whole provision is directed to proceedings in. which the Sheriff is employed about the levying of a sum of money in exeoution. Alternative part applies to such a proceeding in an event, viz. where the process is interrupted before completion but in a manner which produces the same or a similar result. In such a case the debtor merely anticipates by means less distressing to himself the result of a coercive process already in mid-career. He can safely be deemed to have paid, not only in the course of the execution, but under stress of the execution. It can safely be said of the Sheriff: 'He seized and thereby got the money.' No one can be heard to the contrary.

7. It seems to me that if the learned Judge had regard to that passage he would not have fallen into the error which, in my view, he has fallen into. The plain fact of the matter is that the decree-holder in this case took proceedings to enforce his decree in the Benares Court. The judgment debtor's chief property was in Calcutta where the Benares Court had no jurisdiction. The Benares Court, however, could by virtue of Section 46, Civil P. C, issue a precept to the Sheriff of the High Court at Calcutta to attach the property at Calcutta. This the Benares Courtdid. The result of the Sheriff's attachment of the property undoubtedly was that the judgment-debtor took steps to compromise the decree-holder's decree and satisfy it. The Sheriff had done what he was compelled to do according to law and it had the effect which every one anticipated. He was the instrument effectual in the decree-holder recovering the amount of Rs. 1,05,000 and he is entitled to be paid his proper charges which are those set out in Ch. 36, Rule 77, item 22. For these reasons, I am of the opinion that this appeal must be allowed and that it must be ordered that the respondent herein do pay to the Sheriff the sum claimed by him as poundage, namely Rs. 2640. The appeal is accordingly allowed with costs here and below.

Lort-Williams, J.

8. I agree. I desire only to add the following observations. Our task, as I understand it, is to construe item 22 of Rule 77 of Ch. 36 of the Rules of this Court on its Original Side. That item reads 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, compromise or settlement for the first 1000 rupees at 5 per cent, and for the rest at 2 per cent.

9. We have to ascertain the meaning and intention of this Court when framing that rule, as disclosed in the words used by the Court, and to bear in mind that the object of the rule is to provide for the remuneration of the Sheriff, and that the Court intended that he should be entitled to poundage on sums levied by him in execution, and in cases where a levy was either frustrated or made unnecessary owing to a compromise or settlement of the claim which was 'in execution.' I respectfully agree with the (observations of Rankin, J. as he then was, in Pickford v. Janoki Nath Roy (1921) 8 A.I.R. Cal. 763 to the effect that part 2 of item 22 does not apply to any claim but only to a claim 'in execution.' That learned Judge in his judgment points out that there is a great difference between attachment before judgment which is provided for under Order 38 of Schedule 1, Civil P.C., and an attachment, such as occurred in the present case, which is provided for in Section 46 of the Code. The latter form of attachment comes under Part 2, Civil P.C., which is headed 'Execution.' The first sections under that heading are termed 'General' and Section 46 is the last Section under the heading 'Courts by which decrees may be executed.' The application under that Section made to the Court at Benares was treated by that Court as an application not for execution, but in execution. The case was entitled Execution Case No. 79 of 1937, and thus was entitled distinctly from the original title of the case which was Original Case No. 84 of 1931. When the application for a precept had been granted and the precept was received in this High Court it was entitled 'Mofussil Execution Case' and the writ directed to the Sheriff recited as follows:

Whereas the Court of the Additional Civil Judge of Benares by its precept dated 22nd January 1938 issued by it in execution of the decree of the said Court in the above case has requested this Court to attach the immovable property belonging to the defendant abovenamed specified in the schedule hereunder written,

and it commanded the Sheriff inter alia

to receive all moneys tendered to you under this warrant and upon receipt by you of any such moneys you do forthwith certify to this Court the amount and date of such receipt and do pay the amount less your fees, poundage and charges to the Finance Secretary to the Government of Bengal and the Secretary and Treasurer for the time being of the Imperial Bank of India with the privity of the Accountant General of this Court to be by them placed to the credit of this suit subject to the further order of this Court.

10. Both parties to this appeal have treated the case as an execution case because all the applications and the documents which are set out in the paper book are headed either 'Mofussil Execution Case' or 'Execution Case No. 79 of 1937,' and the attorneys for both parties have referred to it throughout, both in their correspondence and in applications to the Court, as 'Execution Case in the Court of the Additional Civil Judge at Benares.' In my opinion, therefore, the proceedings which have taken place in the Benares Court and in this High Court are proceedings coming well within the expression 'in execution' used in item 22 of Rule 77, Ch. 36 of our Rules. I desire only to say in conclusion that if a appears to me that the Sheriff had no righte to maintain the attachment, because the precept had been cancelled, but both sides agree that the only point in this appeal for us to decide is whether the Sheriff in these circumstances is entitled to poundage. In my opinion he is, and this appeal must be allowed.


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