Roshan Dalvi, J.

1. An exparte decree was passed in the above Suits. The decree was sought to be executed. Two Execution Applications being Execution Application Nos.53 of 2001 and 54 of 2001 came to be taken out at the instance of the Plaintiff. A warrant of attachment of movable and immovable properties of the Defendant has been issued on 1st February 2001 in the said Execution Applications. Pursuant to the warrant of attachment, certain movable properties have been seized on 10.4.2001. Together with the movables, the Sheriff of Mumbai has also attached “the right, title and interest of the Defendant in the goodwill of the business together with the tenancy rights of the said business premises.” Thereafter there have been warrants for sale of movable as well as immovable properties separately taken out on 15th December 2004 in both the Suits.

2. It is the case of the Plaintiff that immovable property of the deceased was mortgaged with the Saraswat Bank. The Saraswat Bank had obtained an order of the Court Receiver before the Debts Recovery Tribunal (DRT). Hence the Plaintiff was directed by the Commissioner For Taking Accounts and thereafter by this Court, in two Chamber Summons taken out by the Plaintiff being Chamber Summons Nos.748 of 2005 and 749 of 2005, to take leave of the DRT for attachment and sale of the immovable property of the deceased. This is notwithstanding the fact that the goodwill of the business together with the tenancy rights of the business premises was attached since

10.4.2001.

3. The Plaintiff took out an Insolvency Notice. Dispute between the parties came to be settled therein. The Plaintiff recovered Rs.1.80 Crores on 20th December 2007. Consent Terms were executed by and between the parties in the Insolvency Petition.

4. The Sheriff of Mumbai has claimed his poundage of 1% of Rs.1.80 Crores which is the amount recovered by the Plaintiff.

5. It is the case of the Sheriff that the amount is payable under Rule 474 of the High Court (Original Side) Rules since the attachment was levied, the properties were attached and seized on 10.4.2001. It is the case of the Plaintiff that no poundage is payable because only the movable property and the goodwill of the business together with tenancy rights of the business premises have been attached but not the immovable property.

6. The warrant of sale of immovable properties has not been executed since the Plaintiff had to obtain leave of the DRT before which the dispute came to be settled in the Insolvency Petition taken out by the Plaintiff. It has to be seen whether after the warrant of attachment has been taken out and the properties are seized and attached by the Sheriff, poundage would be payable, if only movable properties are attached. Rules 474 to 476 of the High Court (O.S.) Rules run thus:

“ 474. Liability for Sheriffs poundage.( 1) In cases where a person is arrested or property is attached, the party or the Advocate on record for the party at whose instance the arrest was made or the attachment levied shall be liable to the Sheriff for his fees or poundage, as the case may be.

.(2) Any amount received by the judgment creditor from the judgment debtor in full or part satisfaction of a decree or order in respect of which a warrant of arrest or a warrant of attachment has been executed shall be presumed to have been realised under the warrant, if the warrant is merely suspended and not dead.

.(3) Where the execution creditor or his Advocate on record receives directly any instalment or other sum ordered to be paid by the Judgment debtor in full or part satisfaction of the decree or order, he shall file a precipe in the Sheriffs office informing him of the payment made.

.(4) The Advocate on record shall be responsible for filing this precipe, if the payment has been made through his office or he has been informed of it by the execution creditor.”

(Emphasis supplied) R.475. Advocate to file in Sheriffs Office copy of order releasing judgmen