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1953 Supreme(Cal) 62
HIGH COURT OF CALCUTTA
P. B. Mukharji
MONI MANJURI DASSI - Appellant
Versus
RAZIK - Respondent
Suit 496 Of 1947
Decided On : MARCH 30, 1953
AMIYA NATH BOSE, M.S.MALICK, SACHI GUHA
An attorney holding an order for costs comes within the meaning of Section 73, CPC, and Rule 48 of Chapter 38 of the Original Side Rules, and is entitled to participate in the rateable distribution of monies in the hands of the Sheriff under Section 73, CPC.
Headnote:
ATTORNEY'S RIGHT TO RATEABLE DISTRIBUTION - ATTACHMENT IN EXECUTION OF ORDER FOR COSTS - INTERPRETATION OF SECTION 73, CIVIL PROCEDURE CODE AND RULE 48, CHAPTER 38 OF THE ORIGINAL SIDE RULES - APPLICABILITY OF CODE PROVISIONS TO ORDERS FOR COSTS - DISTINCTION BETWEEN DECREES AND ORDERS - RELEVANCE OF SECTION 36, CIVIL PROCEDURE CODE - PARTICIPATION OF ATTORNEY IN RATEABLE DISTRIBUTION.
Fact of the Case:
The case involved a dispute over the right of an attorney to participate in rateable distribution under Section 73 of the Civil Procedure Code (CPC) where the attorney had attached in execution of an order for costs made in his favor under Rule 48 of Chapter 38 of the Original Side Rules. The decree-holder plaintiffs sought an order that the Sheriff pay out of the sale proceeds of two mud kothas belonging to the judgment-debtor the costs of execution proceedings, costs of sale, and costs of the suit, including the taxed costs of the plaintiffs and their guardian-ad-litem, as well as the claim of Rs. 1900/- with interest. The main contention was whether the attorney for two of the defendants was entitled to claim priority over the decree-holders or participate in the rateable distribution under Section 73, CPC.
Finding of the Court:
The court held that the attorney was entitled to participate in the rateable distribution of the monies in the hands of the Sheriff under Section 73, CPC. The court interpreted Section 73, CPC, and Rule 48 of Chapter 38 of the Original Side Rules and found that an attorney holding an order for costs came within the meaning of these provisions of law and procedure. The court also considered Section 36, CPC, which provides that the provisions of the Code relating to the execution of decrees shall apply to the execution of orders, and held that an order for taxation attracts all the provisions of the Code so far as they are applicable.
Issues: 1. Whether an attorney can claim priority over the decree-holders or participate in the rateable distribution under Section 73, CPC, where the attorney has attached in execution of an order for costs made in his favor under Rule 48 of Chapter 38 of the Original Side Rules. 2. Whether an order for taxation obtained by an attorney against his own client is a decree for the payment of money within the meaning of Section 73, CPC.
Ratio Decidendi: 1. The court held that Section 73, CPC, applies to persons who have made an application to the Court for the execution of "decrees for the payment of money" passed against the same judgment-debtor. However, the court found that an order for taxation obtained by an attorney against his own client is not a decree for the payment of money within the meaning of Section 73, CPC. 2. The court interpreted Rule 48 of Chapter 38 of the Original Side Rules and held that it provides that an attorney, where he has taxed his bill of costs against his client, may apply in Chambers on summons for an order against his client or the legal representatives of such client for payment of the sum allowed on taxation or such as may then remain due. The Judge on hearing the summons may make such order or refer the parties to a suit. The court found that such an order, where made, may be executed under Order 21 of the Code as a decree for money. 3. The court also considered Section 36, CPC, which provides that the provisions of the Code relating to the execution of decrees shall apply to the execution of orders. The court held that an order for taxation attracts all the provisions of the Code so far as they are applicable. 4. The court concluded that an attorney holding an order for costs comes within the meaning of these provisions of law and procedure, and it would be improper to deprive them of the benefits of such legal provisions.
Final Decision: The court held that Mr. M. S. Mullick, the attorney for two of the defendants, was entitled to participate in the rateable distribution of the monies in the hands of the Sheriff under Section 73, CPC. There was no further order on the application, and no order was made as to costs.
( 1 ) THE central point of dispute in this application is attorney's right of rateable distribution under Section 73, Civil P. C. , where he has attached in execution of an order for costs made in his favour under Rule 48 of Chap. 38 of the Original Side Rules.
( 2 ) THE application is made by the decree-holder plaintiffs for an order that the Sheriff of Calcutta do pay out of the sum of Rs. 2371/4/- being the net amount lying in his hands out of the sale proceeds of two mud kothas at No. 59, Mechuabazar Street, Calcutta, belonging to the judgment-debtor after deduction therefrom the commission of the Accountant-General, payable to the plaintiffs' attorneys the costs of and incidental to the execution proceedings of the decrees dated 30-4-1948 and 4-4-1949, including those of levying their respective attachments and costs of all proceedings in connection with, the sale of the attached properties and also of costs of and incidental to this ap-plication and of costs to the suit resulting in the two aforesaid decrees and orders dated 9-7-1948, 29-3-1949 and 5-2-1952 and the amount of taxed costs of this suit of the plaintiffs and of the taxed costs of the guardian-ad-litem under the decree of 30-4-1948 and of the balanced taxed casts of Suit No. 224 of 1948 with interest and also of the amount of claim of Rs. 1900/- with interest of the plaintiffs in this suit in part satisfaction of the claim and costs of the plaintiffs in this suit as well as in Suit No. 224 of 1948. The other order that is sought is that Mr. M. S. Mullick, attorney for two of the defendants Mrs. Razik and Sk. Mazim is not entitled to claim either priority over the decree-holder or participate in the rateable distribution under Section 73, Civil P. C. ,
( 3 ) THE main argument has centred round the right, if any, of Mr. Mullick, attorney for the said two defendants, to participate in the rateable distribution.
( 4 ) THE facts giving rise to this application may be briefly recounted. This suit was filed on 25-2-1947, against the defendants for a sum of Rs. 19007-as arrears of rent from July, 1945 to January 1947 at the rate of Rs. 100/- per month in respect of premises No. 7, Raja Dinendra Street, Calcutta. Mr. B. N. Ghose, an attorney of this Court, was appointed the guardian-ad-litem of the minor defendants. An 'ex parte' decree was passed on 30-4-1948 against the defendants for Rs. 1900/- with interests and costs. The costs of the plaintiffs were taxed for the sum of Rs. 973/4/- with interest at 6 per cent per annum from 16-9-1948. The costs of the guardian-ad-litem was taxed for Rs. 206/3/6 with interest at a similar rate. The plaintiff Sm. Mani Manjuri Dassi died thereafter leaving the present applicants as the surviving plaintiffs and an order was made on 9-7-1948 permitting the applicants as surviving plaintiffs to proceed with the execution of the decree. On 1-10-1948, the decree was executed by attachment of the right, title and interest of the defendant judgment-debtors in the two mud kothas standing on premises No. 59, Mechuabazar Street, Calcutta. Thereafter the first defendant Mrs. Razik entered appearance in this suit through Mr. M. S. Mullick, an attorney of this Court, and applied for setting aside the 'ex parte' decree. An order was made on 29-3-1949, setting aside the 'ex parte' decree only as against defendant Mrs. Razik and costs of the said application were allowed to the plaintiff. The suit was thereafter heard and a decree was passed on 4-4-1949, against the said defendant Mrs. Razik for the same amount of Rs. 19007- with costs. The costs of the plaintiffs as against this defendant Mrs. Razik have not yet been taxed. The decree-holders thereafter caused the Sheriff on 5-5-1950, to attach the right title and interest of defendant Mrs. Razik in the said two mud kothas in execution of the decree dated 4-4-1949. Then the decree-holders applied for and obtained an order on 27-6-1919 for sale of the right title and interest
