An order for payment of the commissioner's fee is executable as a decree under Section 36 of the Code of Civil Procedure.

Sinha, J.

1. This is an appeal by defendants 10 to 16 to a partition suit against an order dismissing their application for amendment of the executable order passed in favour of the pleader commissioner.

2. In a suit for partition, a preliminary decree was passed, and, after the preliminary decree, a pleader commissioner was appointed to make takhta-bandi. It appears, after the takhtabandi had been made, the appellants filed certain objections to the report of the pleader commissioner, and, thereupon, the Court ordered reshuffling of the allotment, but directed that the cost of the same will be entirely borne by these appellants. After that, the appellants were directed to deposit a sum of Rs. 1,200.00 as commissioners fee.

They deposited Rs. 1,200/-; but as the final bill of the commissioner was passed for Rs. 2,187/-, the Court, by order dated 28th March, 1947, directed the appellants to deposit the balance, namely, Rs. 987/-. The report of the pleader commissioner was confirmed on 30th June, 1947. It appears, the pleader commissioner submitted another bill for Rs, 200/-, and a third one for Rs. 32/-. On 26th September, 1947, the Court consolidated all the pending bills of the commissioner, according to which these appellants had to pay a sum of Rs. 1,219/-, and the Court passed the bill of the commissioner for Rs. 1,219/-, and directed that the defendants 10 to 16 should pay the amount within a month from that date, failing which the pleader commissioner was to realise the amount by execution together with future interest at 6 per cent, per annum from the date of the order, namely, 26th September, 1947. The money not having been paid, the pleader commissioner took out execution sometime in the year 1949. Thereafter, these appellants filed an application on 20th December, 1950, which was headed as being one under Sections 47 and 151 of the Code of Civil Procedure, with a prayer which I would like to quote: "Therefore the petitioners request your honour to order the amendment of the executable order in favour of the learned Commissioner B. Girja Pd. and hope that your honour will kindly do so for which the humble petitioners shall ever pray."

The objection, therefore, per se, is not an objection to the executability of the order but to the amount mentioned in the order. This objection was heard and decided against the appellants on 25th August, 1952, and hence this appeal.

3. Mr. Saran, learned Counsel appearing on behalf of the respondent, has raised a preliminary objection that no appeal lies to this Court. Mr. Chaudhary, on behalf of the appellants, has submitted that appeal lies under Sec. 47 of the Code of Civil Procedure. He further submits that the order pass ed by the Court below on 26th September, 1947 was an order which could not have been executed in law; and that, if the pleader commissioner wanted payment of the money, as mentioned in that order, he should have instituted a suit.

4. I think, the preliminary objection is not without substance. Appeal can possibly lie only under Sec. 47 of the Code of Civil Procedure, if that section has any application. It is, however, obvious that Sec. 47 has application only where questions arise between the parties to the suit in which the decree was passed or their representatives, and relating to execution, discharge or satisfaction of the decree. In this case the pleader commissioner was not a party to the suit, and the questions raised are not questions in regard to execution, discharge or satisfaction of the decree. In that view of the matter, in my opinion, Sec. 47 has no application.

The answer given by Mr. Chaudhary is that Sec. 47 was the section mentioned under which the appellants had filed the objection. There is no doubt that Section 47 is mentioned as one of the sections under which the application was made; but merely because of that label, no legal significance can possibly be attached to that petition as a petition under Sec. 47. This is apparent also f