1. This is an appeal by the pleader Commissioner against an order of the Court below dismissing his application for execution for the realisation of the money awarded to him by Court as remuneration for the work done in connection with a partition suit in, which the respondent was the plaintiff. The plaintiff had brought in a partition suit against several defendants. The appellant was appointed commissioner to measure the lands, and to prepare map and khatiana, and to effect a partition. Some money was deposited as his remuneration; but he did more work and he claimed more remuneration. After the appellant had done most of the work, on the 20th January, 1922, neither party appeared before the Court and the suit was dismissed for default of both parties. On the next day the appellant applied to the Court for obtaining his remuneration which he estimated at Rs. 967. The sherishtadar was asked to report, and on the 25th January, 1922, the Court passed the following order.
Bead sherishtadar's report. The commissioner is allowed as remuneration Rs. 538-9-6 and Rs. 155-4-0, the other charges; in all Rs. 693-13-6, of which Rs. 50 is in deposit and the plaintiff is directed to deposit the balance, Rs. 643-13-6 within a week.
2. On the 11th February following order was passed: The plaintiff has not yet deposited the balance of the fees. The applicant pleader commissioner, Babu Chandra Kumar Dey, may legally proceed against her to recover the same.'
3. The appellant put this order into execution and prayed for attachment of the immovable properties of the judgment-debtor, namely, the plaintiff respondent. Thereupon the plaintiff filed an objection in which she stated that the order was passed without her knowledge and in her absence, that the commissioner was not entitled to any remuneration for the excess work, that the plaintiff was not alone liable to deposit the amount, that the said excess account had not been included in the decree and thus therefore the order was incapable of execution.
4. On this objection the learned Subordinate Judge who was not the game officer as the Subordinate Judge who had passed the order dated the 11th February, 1922, dismissed the application for execution on the ground that it was not legal and binding on the respondent as it was passed after the dismissal of the suit.
5. A preliminary objection has been taken by the respondent on the ground that no appeal lies to this Court. It is based on the contention that the order which was sought to be executed in the Court below is not a decree and therefore the provisions of Section 47, Civil Procedure Code, do not apply. This objection does not seem to be of much substance.
6. Under Section 36, Civil Procedure Code an order directing the payment of an amount is to be executed in the same way as a decree, and consequently the provisions of Section 47 will apply to execution of an order under that section.
7. In fact the petition of objection filed by the respondent is headed as an objection under Section 47. On the merits of the appeal it is urged by the respondent on the authority of the case of Tadhin Proshad Singh v. Sardar Coomar (1905) 10 C.W.N. 234 that this amount ought to have been made a part of the decree. It should be borne in mind that the suit was dismissed because neither of the parties was present at the hearing. The appellant might not have notice of the fact that the parties were not present and the suit was dismissed. He applied at the earliest opportunity for the payment of his remuneration.
8. The decree that was prepared in the case does not award any cost of any party, but only recorded the fact that the suit is dismissed for default of both parties. Whatever might be the view of the law under the Code of 1882 in my judgment Section 36 is much wider than the corresponding Section 649 of the old Code.
9. It allows execution to be taken of any order which can be executed in the same way as a decree. Besides, in this case I do not know how the amount payable to the appellant could be inserted in the decree; and even if it was inserted how and by whom execution can be taken for this amount. In the case referred to, the learned judges suggested that this amount should form a part of the decree; but they did not refer to the impracticability that might be involved in preparing the decree. It is possible that the suit of the plaintiff may be decreed against the defendants with costs and the decree awards costs to the plaintiff as against the defendants. It is difficult to see how the decree can provide for the payment of the commissioner's fees by the plaintiff in favour of whom the decree should be drawn up, the commissioner not being a party to the suit. We need not consider this matter further.
10. It is also contended by the respondent that the order was passed in her absence and that there were other persona who are liable to pay a portion of the amount awarded to the commissioner. These are objections which cannot be taken before the executing Court. The proper remedy for the respondent was to apply to the Court below to have that order varied or rescinded.
11. We think that these objections cannot be taken in execution proceedings inasmuch as the executing Court is not entitled to go behind the decree. The respondent having failed to satisfy us that the decree was passed without jurisdiction, we must direct the execution should proceed. The respondent will have liberty to seek his remedy against any party who may be liable to pay this amount.
12. We accordingly hold that this appeal succeeds, and the order of the Court below appealed against should be discharged. 'We direct that execution do proceed. The appellant is entitled to his costs in all the Courts. We assess the hearing foe at two gold mohurs.
13. I agree with my learned brother that this appeal should be allowed. To my mind it is clear that this order would come within the provisions of Section 36 and thus attract to it the whole procedure in execution and the right of appeal which is provided in respect of an order under Section 47, In this view the order appealed against is appealable as one passed under Section 47 and the order itself is capable of being put in execution in view of what I hold under Section 36. The ruling in Tadhin Proshad v. Sardar (1905) 10 C.W.N. 234 was passed under the previous Code, Section 649, which was not in so generally broad terms as the present Section 36 is. Though no doubt the ordinary procedure is that the money should be deposited in advance under O.26, there can be no doubt that the commissioner who cannot realise money for work done must have some remedy to recover his costs. Apart from anything else I will hold that by its inherent power the Court has jurisdiction to see that justice is done to the commissioner in this matter by assisting him with the general power which the Court has to recover what is justly due to him for the work done. In this view of the matter I consider that this appeal should be allowed with costs.