SHAIKH FAZAL ELLAHI Vs. SHREE KRISHNA MAKKAR

JUDGEMENT

(1.) This is an appeal against an order of Sen J., made on 29 May 1939 reported in in , whereby he adjudged that the Sheriff was not in the circumstances entitled to any poundage. The Sheriff claimed poundage under Rule 77, Ch. 36 of the Rules of the Original Side of this Court which states: The fees to be allowed to the Sheriff and his officers shall be as follows: 22. Poundage on sums levied by the Sheriff in execution or in the event of the claim being satisfied, compromised or settled, upon the amount of such satisfaction, compromise or settlement for the first 1000 rupees at 5 per cent, and for the rest at 2 1/2 per cent.

(2.) The facts which led up to the claim were as follows: The decree-holder was the plaintiff in Suit No. 84 of 1931 in the Court of the Civil Judge of Benares, and on 1 June 1937, he obtained a decree against the judgment-debtor, who is the respondent in this appeal, for a sum of over two lacs of rupees. On 22 January, 1938, a precept was issued by the Court at Benares which was headed: Precept ( Section 46) : In the Court of the Additional Civil Judge, Benares : Execution Case No. 79 of 1937 : Original Case No. 84 of 1931: Shriman Ral Krishnaji - Plaintiff-Decree-holder V/s. Srikrishen Mackar - Defendant-Judgment- debtor. It states in the operative part: On the motion of the decree-holder it is ordered that this precept be sent to the Registrar, High Court of Judicature at Port-William in Bengal under Section 46, Civil P.C. 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application which may be made by the decree- holder for execution of the decree. The attachment should be made subject to the limitations put in order enclosed.

(3.) In the schedule annexed was a list of properties; it included premises No. 15, Banstolla Street, Calcutta, known aa "Mackar House" and all the moveablea therein including cash, ornaments, jewelleries, furniture, household effects, motor cars and also a share in the Calcutta Stock Exchange. The precept was signed by the Additional Civil Judge of the Court at Benares. Consequent upon that precept, the Sheriff attached the premises concerned and the property mentioned. In particular he sealed up two iron safes belonging to the judgment- debtor situated in the house. No further application for execution was made, but the precept was extended by orders of the Benares Court at the end of two months and every subsequent two months until 20 March 1939. The respondent, who was the petitioner before Sen J., stated in his petition that: In the meantime the decree has been sent to this Court (i.e. the Calcutta High Court) for execution. But no application has been made in this Court for execution as yet.