The main legal point established in the judgment is the inherent jurisdiction of the Court to grant refund of custody fees in cases where the anticipated circumstances do not happen, and the applicability of the rules of the High Court in determining the refund process.

JUDGMENT

Mukherjea, J. - This is a Reference made by the Subordinate Judge, 2nd Court, Tipperah under Or. 46. r. (1) of the CPC and involves determination of a short point of law. There was an execution proceeding started by la decree-holder wherein he prayed for attachment of certain movables belonging to the judgment-debtor. In that execution case a sum of Rs. 7-8as. was paid by the decree-holder as custody fees, and these fees are always realised in advance under the rules framed by this Court under sec. (20), Court Fees Act. Ultimately the decree-holder did not proceed with the execution case and the amount remained unspent. The decree-holder then prayed for refund of this amount and the controversy centres round the short point as to whether this claim for refund is tenable. As the amount was not spent at all, there lis apparently no justification for refusing the claim for refund; and the learned Senior Government Pleader appearing in support of the Reference has fiairly stated that the claim cannot be resisted on any ground of justice or equity. The Subordinate Judge seems to be of the same opinion and there is a specific provision in Paragraph (790), Note (3) of the Civil Rules and Orders issued by this Court for the guidance of the subordinate Courts, which lays down the procedure for obtaining such refund. The learned Subordinate Judge, however, felt difficulty in granting the application for refund, because of a letter [being General Letter No. 43 (Civil) of 1935, dated 19th December, 1935] issued by this Court by which all District Judges were informed that refund of poundage fees was ultra vires of this Court as sec. (20) of the Court Fees Act gives power to fix fees only and not to refund them. The Letter obviously does not touch the present point as it relates to poundage fees which are invariably realised after the sale and cannot remain unspent as is the case with custody fees, but as the matter is put on the larger ground that the rules are ultra vires of this Court, the learned Subordinate Judge entertained reasonable doubt as to whether or not the same principle would hold good with regard to custody fees also. It is necessary, therefore, to examine the matter a little more in detail in order to find out whether the General Letter issued by this Court does really stand in the way of granting a refund in this case. Now sec. (20) of the Court Fees Act empowers the High Court to make rules inter alia relating to fees chargeable for serving and executing processes, etc., issued by Civil Courts. Custody fees come undoubtedly within the purview of the section, as they are charges levied upon the decree-holders to meet the costs of person or persons sent out to ensure safe custody of the movables attached in execution proceedings. Under the rules of this Court framed under the said section, the custody fees are payable at the time of obtaining the processes and the minimum amount prescribed is Rs. 7/8, being the remuneration of. a custody peon for 15 days at the rate of 8 as. per diem (Part II, Art. 3 of the Rules). There is no rule framed by the High Court under sec. (,20) of the Court Fees Act relating to the; refund of such fees, but there is a provision for refund of poundage fees under Art. (7) of the Rules, if the execution sale is afterwards set aside. Now poundage fees are paid invariably after the sale and constitute a sort of percentage or commission upon the gross amount realised by the sale. There would be no question of their being spent or not spent, and it may be said that sec. (20) of the Court Fees Act did not authorize the High Court to legislate through the rules, as to under what circumstances the auction purchaser could demand back these fees. The case of custody fees, however, stands on a different footing, they are taken in anticipation, and if the anticipated circumstances do not happen, there is a clear duty to refund on the plainest and most elementary principles of law. There is no rule f