GOPAL DAS Vs. BABU GAURI SHANKER PRASAD

JUDGEMENT

(1.) In a suit for partition a preliminary decree was passed appointing a Commissioner to make a partition and to ascertain the debts and outstanding amounts and the capital and stock-in-trade of a certain shop and to take them in account in flaming his proposals. That decree was the subject-matter of an appeal to this Court. While that appeal was pending, the Commissioner proceeded. with his work and found that a sum of Rs. 100, settled as payable to him for executing the commission, was insufficient in consideration of his labour. He, therefore, when submitting his accounts and the list of the properties proposed, to be partitioned, moved the Court to award him Rs. 800 as his fees for the work he had done. The Court thereupon ordered that Rs. 600 should be paid to him by the plaintiffs and Rs. 200 by the defendant, and that if the appeal from the preliminary decree was successful, the defendant would be entitled to recover the latter sum from the plaintiffs. It further ordered that a decree for the amount should be prepared in favour of the Commissioner against the parties to the suit. This order was passed on the 22 March, 1919; but no decree was actually prepared in pursuance of the above order in favour of the Commissioner. The plaintiffs made default in the payment except of a small portion of the money,

(2.) The appeal from the preliminary decree eventually succeeded and the entire claim was ultimately dismissed by the Court of first instance on the 15 of April 1920. In the closing or final decree then prepared the direction of the 22nd of March 1919 regarding the payment of remuneration due to the Commissioner by the plaintiffs was not embodied. Meanwhile, the plaintiffs obtained an order adjudicating them insolvents, on the 24 of March 1920. They subsequently obtained an order of discharge on the 26 of January 1921. During the insolvency proceedings no mention is said to have been made by them of the amount which they were liable to pay to the Commissioner and in the schedule of proved debts prepared the amount due to the Commissioner is not stated to have been shown.

(3.) An application has since been made by the Commissioner for the execution of the order of the 22 March, 1919 by the arrest of the plaintiffs. The plaintiffs opposed this application on the ground among others that, having been declared insolvents and, discharged they were not liable to arrest in lieu of a debt proveable in the insolvency proceeding within the meaning of sections 34 and 44 of the Provincial Insolvency Act (V of 1920). When this objection came up for hearing the plaintiffs-judgment-debtors stated, that they were not in a position to pay any money at that time but would be able to do so after they start some business and earn some money. The Commissioner agreed to allow them time for the payment of the money due to him. The learned Subordinate Judge acceded to the request of the judgment-debtors for time and allowed them two years to pay the money, but at the same time he disallowed their objection. The judgment-debtors appealed to the District Judge who dismissed their appeal holding that no appeal was entertainable under Section 47 of the Civil P. C.. The preliminary question for consideration here is, whether Section 47 has any application to the case. As has already been pointed out, there was no decree prepared in the case; in fact the person who was seeking redress was not even a party, to the suit in which the order sought to be executed was passed. The order in question was virtually an order passed by the Court in favour of one of its officers for the payment of costs connected with the execution of a commission which were recoverable from the parties to the suit. An order of that character may be enforced by the Court under the inherent powers conferred upon it by Section 151 of the Civil P. C. in such manner as may be thought proper. Any proceeding taken in enforcement of such an order is not a proceeding between the parties to a suit for the execution of a decree within the meaning of Section 47 of the Civil P. C. and the learned District Judge was right in holding that no appeal lay to the Court below and no appeal would similarly lie here. The appeal is, therefore, dismissed with costs.