MADANLAL Vs. RAMNATH

JUDGEMENT

(1.) THIS is a revision under section 115 of the Code of Civil Procedure against the order of Civil Judge, Class I, Hoshangabad, in Civil Suit No. 1-A of 1957, dated 19-6-1973, holding that the order of the Court directing the Commissioner's fee to be paid by the defendants was executable at the instance of the Commissioner.

(2.) IN a partition suit filed by the 1st respondent, Ramnath, a Commissioner was appointed to effect partition and the Commissioner's fee was fixed at Rs. 600 ; Rs. 300 being payable by the plaintiff and Rs. 300 by the defendants. The plaintiff deposited his share of the Commissioner's fee, while all other defendants, except Pannalal, committed default. Therefore, the learned judge passed an order authorising the Commissioner to recover the unpaid fees by executing the order.

(3.) THE learned counsel for the petitioners contended that there is a conflict of views on this question and, therefore, this might need an authoritative decision at least by admitting the revision and by referring it to a larger bench. Attention was invited to the observations of a Division Bench of the madras High Court in P. R. M. A. Alagappa Chetti v. V. T. M. Muthia Chetti (6mlj124.)It is true that, in that case, it was held that an order about payment of commissioner's fee could not be executed as such, such fee was treated on a par with the fees paid to a counsel in a case. A similar view was expressed by a Division Bench of the Madras High Court in Venkatanarasimhulu and others v. Narasirvhamvrti and another (10 ML J 241.) It is to be noted that both these cases were with respect to sections 244 and 397 of the earlier Civil Procedure Code.