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February 26and 27,
KARUPPAX CHETTY v. AXTHOXAYAK12 HAMINE.D. C., Kurunerjalu, l,9nr>.
■Costs in claim proceedings—Civil Procedure Code, s. 241—Summary investiga-tion—Option of Court to investigate or not—Duty of Court to notifyclaimants and execution-creditor—Form of notice of investigation—Reasonable fees to proctors for work done—Practice of making motionswhen none are needed—Date on which work of proctor ires tlonc. and datesof alleged payments essential to bill of costs.c
The District Court having an option as to whether or not it shallundertake the investigation of a claim made under section 241 of the•Civil Procedure Code, it is its duty, and not of the proctors concerned,to notify to the claimants and the execution-creditor its intention tohold the investigation.
No notice is necessary on the judgment-debtor.
Rengappa Thevor v. Kudadurage (2 C. L. R. 40) disapproved.
The form of the uotice should be similar to the summons prescribedin criminal cases.
Theonlyquestion fordetermination inthissummary inquiry is
whether the claimant was in possession at the time of the seizure. Ifhe was in possession, the Court directs the Fiscal to release the seizure.
Where, notwithstanding the possession of the claimant, the execution-debtor appears to be the true owner of the property, the questionwhether it is executable under the wrif must- be determined in a separateaction, brought under section 247.
Inclaim proceedingssummarily investigated,the DistrictCourt
shouldallowto the claimants' proctor what,havingregard to thework
done- is in its opinion a sufficient remuneration.
In such proceedings, bills of costs should not be permitted.t ■Inmatters of regularprocedure, nothingwhichis it step inthat
procedure should be the subject of a motion, and no bill of costs whichdocs. not give the date on which a work was done or a payment made isa proper bill.
TTPOS a decree entered in favour of the plaintiff in this case.
execution issued and certain property, alleged to belong .to the defendants and to.be of the value of Rs. 600. was seized.Two sets of claimants appeared before the Fiscal and Claimed anundivided half share of the property seized.
The claims being reported to the District Judge, au inquiry washeld, when the two sets of claimants appeared on the same dayby the same proctor.' The Court upheld the claims with costs.
The proctor for the claimants filed two bills of costs as in thesecond class of costs taxable in the District Court, on the footingof each claim being of the value of Rs. 600. The Secretary allowedall the items, and the judgment-creditor moved the District Court, torevise the taxation of the two. bills on the following grounds: (1)that there was only one inquiry; (2) that only one set of stampsshould have been allowed; (3) that only one bill of costs
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should have been taxed; (4) that the charges made as for a regulartrial and for attending Court should not have been sanctioned;and (5) that under the third schedule a reasonable sum ought tohave been awarded to cover the costs of the inquiry.
The District Judge . found that in Colombo and Kandy thepractice was to allow costs in claim inquiries as in regularactions, and that the two bills of costs were properly taxed bythe3 Secretary, save as to one item of Rs. 10 withdrawn by theclaimants’ proctor.
The judgment-creditor appealed. The case was argued on the26th and 27th February, 1002.
Sampayo, for appellant.—,The proceedings were the same and thework done by the proctor was the same, and the fact that therewere two sets of claimants does not justify the recovery of taxes ontwo bills. Stamps were charged for above the value of stampsnecessary for these claims. Each set of claimants claimed halfonly of the property, and the scale of taxation should have been asfor Rs. 800, whereas the calculation is on the whole value of tlw landin each case. That is obviously wrong. Appearances are chargedfor which were unnecessary, and they include appearances beforethe proxy was filed. There are charges made for copying and read-ing the proceedings and pleadings. That was unnecessary, andthe proctor is not entitled to charge these things. [Bonser, C-I.—Why not?] The claim proceedings are to decide who is inpossession of the land, but that question is wholly apart from theoriginal action. The pleadings and proceedings at the trial donot affect the point inquired into. All these costs charged are notfair in a mere claim inquiry which is a summary inquiry, andthey must therefore be reasonable charges only. [Bonser, C.J.—I'nder what section are these costs allowed ?] The provision atthe foot of schedule 3 of the Code has been relied on. [Bonser.C.J.—I am not sure that any bill of costs should be allowed to betaxed.]
H… A. Ja.yawqrd.ene, for claimants, respondents. —C'osts should beallowed in such cases. It has always been done. Das v. Prasad,/. L. It., 6 All. .81, shows that costs should be allowed. In Vanniah v.Veemanadan, 8 Browne, 886, it was suggested that costs should beallowed in cases like these, in cases of damages, &c. [Bonser, C.J.—What was the necessity for all these motions ? Why a motion tofile lists of witnesses ? to move for taxation ? ] Lists must be filedso as to let the Court know and give an opportunity to exerciseits judgment with regard to the witnesses to be called. The otherside also gets a notice of who is going to be called. [Bonser, .C.J.—Where you have a right to do a thing, you need not move the
''tbruary 26and 27.
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Court for permission. In a summary inquiry all delay and expense-February 26 sb0uld be avoided. The prospective charges in the bills are unjust.
a' You must assume the other side will pay without bills, &c. But
what right, have you to costs ? ] T he Fiscal only collects the pros-pective costs when they are incurred. Costs are awardablein these inquiries, and the class in which they should be taxedshould be determined by the value of the land seized. The itemscriticised are not the items which were objected to. The decisionin a claim case is most important, and parties cannot afford to gowithout the help of professional advisers. In fairness they mustbe deemed to have a right to be paid for the work and to havetheir costs taxed. Candaperumal v. Sinuatar (1 N. L. It. 128).
Sampayo, in reply, quoted Ramalingam v. Kurukkal (2 N. L.
R. 14); Indian Code, § 278; O'Kinealy, p. 304 (1893); Shivapa v.Dodnagaya, I. L. It. 11 Bombay, 117.
27th February, 1902. Bonser, C.J.—
This is an important case to suitors, more important than manycases which come before us, because it deals with the question of'the costs whioh an unsuccessful suitor is bound to pay. In thiscase the appellant was the execution-creditor, that is to say,, he hada judgment against a debtor, and in. seeking to execute that judg-ment he caused a piece of land to be seized, which he stated to b&of the value of Rs. 600. Thereupon two sets of claimants put ina claim alleging that the land was not liable to be seized inexecution for the debt due under the judgment to the execution-creditor. Each of the claimants claimed an undivided half ofthis property, and on the 10th May, 1901, they delivered to theFiscal a formal document in support of their claim. The seizurehad taken place on the 22nd April previous. Upon receivingthat claim, it is the duty of the Fiscal to transmit it to the Courtwith a report of the circumstances under which the seizure was;made, and the Code provides that the Court shall thereuponproceed in a summary manner to investigate such a claim.
Now, the words “in a summary manner ” are very important,,and, if we may take the proceedings in the present case as a-sample of what generally takes place in these claim proceedings,those words have been generally ignored or forgotten. Theclaimants themselves did not comply with the requirements of thelaw, but although the seizure was on the 22nd April, the claimwas not made till 10th May. Section 242 of the Civil ProcedureCode provides that the claim is to be made “ at the earliestopportunity.” However, no difficulty arose in consequence ofthe delay in making the claim.
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The only direction is that the Court shall investigate the claim in 1902.a summary manner. No duty is thrown on the claimant to set
the Court in motion, but it is the duty of the Fiscal to bring the
matter before the Court. It is not incumbent on the Court Bos8bb’necessarily to hold an inquiry upon the claim, for section 242provides that an investigation shall not be made if it appears tothe Court that the making of the claim was designedly or un-necessarily delayed with a view to obstruct the ends of justice, sothat the Court has an option as to whether it shall undertakethis investigation or not.
If the Court does determine to hold an investigation, it seemsto me that it is the duty of the Court to notify to the claimantand the execution-creditors, who are both interested in theresult of the investigation, that it is going to hold. As regardsthe judgment-debtor, it seems to me that it is unnecessary to servehim with notice, for the investigation is not binding on him in anyway, and therefore he is not a necessary party to the inquiry. Imention that because, in Rengappa Thevar v. Kmladurage, 2C. L. R. 45, the Court there expressed the opinion that the debtorshould be served. That was not necessary for the decision in thatcase, and was merely a dictum which is not binding upon us.
It seems to me that the form of the notice issued by the Courtshould be something similar to the summons in a criminal casewhich is to be tried summarily. In that case the summons to theaccused informs him that a charge has been made against him,and that that charge will be investigated on a certain day. apdthat he is then to attend with his witnesses. It further informshim that, if he has any difficulty in procuring the attendance ofwitnesses, he should make an application to the Court, which willissue process and compel their attendance.
Then, when the parties are before the Court on the day of theInquiry, the procedure should be very simple. It must be re-membered that the only question is whether the claimant was inpossession at the time of the seizure, and not whether the claimantis the owner of the land. If it is found that he is in possession,the Court makes an order to the Fiscal to release the property,but that order determines nothing as to the rights of the parties.
It may be that the claimant is in possession of the property;
-but yet the true owner of the property is the execution-debtor,and the property is therefore executable under the writ. Butthat question cannot be determined in the claim inquiry. The■Code provides that that question shall be determined in a separateaction brought under section 247. If the object and scope of theinquiry had been strictly kept in view, the proceedings in this
February 26and 27.
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and other cases would have been conducted more summarily thanthey appear to have been.
In the present case the matter was not dealt with summarily.
In the first place the Fiscal delayed till the 28th May beforereferring the matter to the Court, and then the matter wasnot finally disposed of by the Court until the 26th August, whenit appears to have taken a few minutes only. The District Judgerecords that “ the Fiscal's report and the evidence shows that *at" the time of seizure the lands claimed were in the claimant's“ possession ”, and the Fiscal was ordered to release them.
The execution-creditor then found himself presented witha bill of costs on behalf of the claimants under the first claim forIts. 106.50, and an exactly identical bill on the second claimfor the same amount. T should have mentioned that the two sets •of claimants employed the same proctor, and that the caseswere heard together. This bill of costs seems to have beentoo much for the patience and long-suffering of the litigant,because he found himself asked to pay Us. 213 to the claimants, inaddition to his own bill of costs, making up a .sum which was. atall events, a very large proportion of the value of the propertyseized. The Secretary of the Court, whose duty it was- to tax thebill, allowed every item. The District Judge, who was asked toreview the taxation, allowed every item except 11s. 10. and as aresult the appellant brought the matter before this Court-.
TheCourtand practitioners haveconsiderable difficultyin
administering the provisions of the Civil Procedure Code, whichmay, without disrespect-,betermeda chaotic compilation.It
would defy the skill of the most learned lawyers to interpret andmake any consistent sense of a great deal of it. But DistrictJudges are for the most, part not trained lawyers, and they there-fore have to work under considerable difficulty, and that they workthe Code as well as they do is, 1 think, a matter creditable to them.
It would really seem that there is no provision in this Code forthe costs of these claim inquiries. How that came about is easyto beseen.Tinder theoldrules and orders these objections
to seizure were made to the Fiscal, and he held a rough and readyinquiryanddeterminedthematter,takings security fromthe
parties. There were no costs, therefore, of any inquiry made bvthe Fiscal. But the Legislature, apparently, was not content withthis state of things, and abolished the old rules and orders and.substituted for them the Code, partly founded on the IndianProcedure Code, partly drawn from the New York Code, partlyfrom the old rules and orders, and partly drawn from the innerconsciousness of. the compilers. As regards the taxation of costs,
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the scale was taken from the old . ales and orders, and they have 1902.been put into a schedule to the Code. The fact that this new^
procedure had been adopted was doubtless overlooked, and there-3
fore no special provisions were made for it. The result hasbeen that the Courts appear to have treated these summaryproceedings as though they were a regular and formal action, andto have taxed the costs on that footing, which of course is not inaccqrdance with the intention of the Code.
We think that in a case like this, as is done in Courts ofRequests, we are informed, Courts should allow what theymay consider a reasonable fee for the work done in the matterby the proctors on either side. There can be no sound reason orsense in making the costs of the claimant depend on whether theoriginal debt with which he has nothing to do was sued for in aDistrict Court or a Court of Requests. Certainly in any eventa great number of the items which have been allowed in this caseought never to have been allowed. For instance—and it is a veryglaring instance—the- proctor for the claimant took copies of theproceedings in the original action and charged Rs. 10 in each forthat purpose, and he also charged Rs. 5 in each case for ^perusingthose documents when he had obtained them. Now, it isimpossible to conceive that the proceedings in the original actioncan haveanything whatever todowith thequestion' asto
whether these persons, who were third parties, who had nothingto do with the action, were in possession of this laud or not atthe time of seizure. The idea is ridiculous, and yet thischarge was solemnly allowed. Then,allowanceswere madefor
drawing up- lists of witnesses and moving to file the same, andso on.
I thought that this Court had stamped out that practice ofin airing unnecessary motions, for we had expressed ourselves verystrongly sometime ago with regard to the practice of filing motionson every conceivable pretext, which then prevailed inthe District Court of Colombo. We are told it is the practice tomove for leave to file this- list of witnesses. But if that is thepractice, it is a practice entirely contrary to the provisions of theCode.' Section 91 deals with motions, and it says there that everyapplication made to the Court in the course of an action incidentalthereto and not a step in the regular procedure should be madeby motion; that is to say, nothing which is a step in the regular' procedureis to be the subjectofa motion.-Filing listsof
witnessesis emphatically a stepin the regularprocedure; it is
required by the Code to be done, and I trust that this will be thelast we shall hear of such motions.
■ 1:J. N. A 68218 (1/47)
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and 27.Bonsbr, C.J.
Then the appellant, although he objected in toto to the bills ofcosts, objected also in particular to the charge of stamp dutieswhich he had been made to pay. The stamps in the variousproceedings in this summary matter were calculated as thoughthese were two actions each relating to the subject-matter ofRs. 600, and therefore falling under the 4th class of the StampOrdinance, but the fact was lost sight of that these claimantswere only claiming each for himself property of the vahm ofRs. 300. Therefore there could be no excuse for treating it asthough the Court ■ were dealing with two properties each in anaction of the value of Rs. 600. However, that point was at onceconceded by the respondent’s counsel in this Court.
But I do not think that any stamp duties are chargeable inclaim proceedings with the exception of a fee of Re. 1. which theStamp Ordinance imposes on the claim petition. The stampduties in actions in the District Courts and Courts of Requestsare not applicable to these claim proceedings.
■ As regards the form of the bill, I think the appellant wasquite justified in objecting to it in toto, for it does not contain,except as to six of the numerous items, the date on whichthe work which was alleged to have been done was done or thepayments alleged made. It is quite clear that the bill was not aproper bill, unless it contained that information. If that infor-mation had been conveyed, it would have been seen that some ofthe items were quite unjustifiable, because some of them relateto matters which occurred before the proxy was filed by theClaimant's proctor.
We think that this appeal should be allowed and the matterremitted to the District Court to allow what, having regard to thework done, is in the opinion of the District Court a sufficientremuneration for the claimants' proctor.
Wendt, J.—I am of the same opinion. Although the contrarywas argued, I think that the Court had power to award costsagainst the unsuccessful party to a claim inquiry. It has alreadybeen so decided in Candeperumal v. Sinnatai, 1, N. L. R. 128.
As to the scale of costs, I cannot think that the Code intendedthe scale in schedule III. to apply to the “ summary ” inquirywhich the Court makes into a claim, where the decision does notfinally settle the rights of parties, but in effect merely determineswho shall be plaintiff in the regular action which is to settle thoserights.
I agree with the Chief Justice in thinking that the propercourse would be for the Court when disposing of the claim to fixsuch a sum for costs as in its discretion appeared to be reasonable..
KARUPPAN CHETTY v. ANTHONAYAKE HAMINE