MT. JAINABAI Vs. RAMCHANDRA UGHADOO

JUDGEMENT

(1.) GRILLE , A.J.C. 1. This is an application in revision against the decision of the subordinate Judge, first class, Burhanpur, in execution proceedings disallowing pleader's fees to the decree-holder. The decree-holder in the case was an assignee of the original decree-holder and the pleaders who appeared for him were pleaders who had appeared in the original case, although he himself necessarily had to re-engage them in execution proceedings. The learned Subordinate Judge has held that an assignee is in no better position than the original decree-holder and has declined to allow pleaders' fees following Rule 6 of the rules laid down in respect of fees of Legal Practitioners under Section 27, Legal Practitioners Act, 1879, which appear in Civil Circular II-4 of the Civil Circulars of the Judicial Commissioner. In the application for revision it is contended that, as the pleaders were newly engaged by the decree-holder, in accordance with Rule 8 of the aforesaid rules, their fees should have been allowed as costs in the proceedings. The rules in question run as follows: Rule 6.-The fees laid down in Rule 1 (that is to say the schedule of fees for suits and appeals) include the fee for conducting proceedings in execution of a decree when the practitioner is engaged in the original suit. Rule 8.-In miscellaneous proceedings, and in proceedings for execution of a decree in which a new pleader is engaged the fee shall be one fourth of the amount payable according to the scale of Rule 1, subject to the minimum of Rs. 5.

(2.) IT is clear that no provision has been made for a case in which a decree is assigned and where pleaders who have been engaged in the suit itself are re-engaged by the assignee in the execution proceedings, and in the absence of such a provision it must be hold that the matter falls in the category of Rule 6 from which it has not been exempted by any other rule. It is not possible to interpret the words in Rule 8 "in which a new pleader is engaged" as "in which a pleader is engaged anew" since the words "in which a new pleader is engaged" definitely exclude the appearance of a pleader who was engaged in the original proceedings irrespective of whether the decree-holder in the execution proceedings is the person in whoso favour the decree was passed. The rules are based on the presumption that when a pleader is engaged in a suit or in an appeal the fees allowed in Rule 1 of the rules are a fair remuneration for the conduct of the case including the execution proceedings, and must, therefore, presuppose, whether such is the practice between pleaders and their clients or no, that on the assignation of the decree the services of the pleader continue free of cost. The result is that the application for revision must fail and it is dismissed with costs accordingly. Pleader's fee Rs. 15.