CHANDRA KUMAR DE Vs. KUSUM KUMARI ROY

JUDGEMENT

(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 20 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 25 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 11 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.