(1.) This appeal arises from an order in execution of the decree in a reference under the Land Acquisition Act. The decree awarded a sum of Rs. 7,94,925. 80 p. as value of the land acquired, besides interest till 28th March 1963 amounting in the aggregate to Rs. 11,56,067.23 p. The State deposited in court the sum of Rs. 11,39,771- 26 p. on 26th March 1963. The decree holder filed E.P. No. 227 of 1963 claiming the balance, viz. Rs. 16,295.97 p. with interest amounting to Rs. 205.61. Another sum claimed in this execution petition was Rs. 22,795.42 p. due as advocates fee in execution. The claim in respect of advocates, fee was resisted by the State. The execution court allowed by order, dated 23rd August 1963 the entire sum claimed as advocates fee. The State has therefore preferred this appeal.
(2.) The decree under execution was passed on 12th June 1962. The first execution petition (No. 660 of 1962) was filed by the attorney of decree holders 1 and 2 on 12th December 1962. One of the prayers was for recovery of execution costs including advocates fee. The power of attorney in favour of the applicants was not produced along with the execution petition, and on 13th December 1962 the court ordered that the right of decree holders 1 and 2 to execute the decree should be proved and that the power of attorney should be produced. On 20th December 1962 the decree holders produced the power of attorney as well as a statement of consent by the third decree holder to the others executing the decree. They also applied for advancing the date of hearing. Thereupon the court ordered notice to the judgment debtor - the State. The notice was accepted by the State on 25th March 1963. The court passed an order on 25th March 1963 to report whether the decree amount has been deposited. The office reported On 26th March 1963 that no amount was deposited till that date. On 26th March 1963, the State had deposited Rs. 11,39,771.26 p. and when the execution petition came on for hearing on 2nd April 1963 the decree holders counsel stated that the execution petition was not pressed. On the strength of this statement, the execution petition was dismissed the same day. The order of dismissal did not make any provision for costs. According to counsel for the decree holders respondents, the execution petition was not pressed as it was understood that the State had deposited the decree amount.
(3.) The question for decision is whether the decree holders can recover the sum claimed as advocates fee. This has to be answered in the light of the rules framed by the Travancore - Cochin High Court under S.16 of the Indian Bar Councils Act, XXXVIII of 1926 and the provisions of the Code of Civil Procedure. R.10 is the relevant rule and it provides: