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Jaganmohan Reddy, J.—This is a revision petition dated 3-2-1951 against an order of the learned Original Side Judge of the High court dated 8-12-1950 directing the rateable distribution of O.S. Rs. 1,02,259-4-2 which was attached on 22-6-1949 in the hands of the Court of Wards at the instance of the revision Petitioner in execution of his two decrees for an aggregate sum of Rs. 96,792 against one Tahazibunnisa, the judgment-debtor since deceased represented by Mir Sarfaraz Ali, Farkunda Ali and Ahamadunnisa.
This amount was received in the High Court on 1-11-1950 and credited to the account of the execution Petitioner on 2-11-50. It appears that several other decree-holders or Plaintiffs had either attached the funds in the hands of the Court of Wards or had obtained injunction orders. The Court of Wards while sending the money to the High Court on 1-11-1950 forwarded a list of persons who were claiming to have their debts satisfied from the funds held to the credit of the judgment-debtor.
The learned Original Side Judge rejected the claims of persons shown in Serial Nos. 5, 6, 7, 8 and 11 in the list sent by the Court of Wards. These decrees were of Motilal (5) in Suit No. 207/ 50 for Rs. 13,500/-; of Hakim Fakir Ahmed (6) in suit No. 435/4 of 1358 F., for Rs. 11,091-11-0; of Sajjad Ali (7) in Sajjad Ali v. Sarfaraz Ali in Suit No. 137/3for Rs. 9,380/-; of Sajjad Ali (8) in ''Sajjad Ali v. Tahajeebunnisa''for Rs. 2,200 and of Sri Kishen (11) in ''Sri. Kishen v. Sarfaraz Ali'' in Appln. No. 9/1350 on the file of the Court of Wards for Rs. 9,000.
Except for the claim of Sri Kishen in item (11) which was evidently filed in the Court of Wards, all the others related to proceedings in the City Civil Court. The only claims for rateable'' distribution that were considered and upheld were of the decree-holders in Serial No. (2) Moinunnisa Begum for Rs. 4,307-6-0; Serial No. (3) Mohd. Sajjad Ali for Rs. 4,361/-; Serial No. (4) Sri Kishen for Rs. 765-3-0; Serial No. (9) of Tahanatunnisa Begum for Rs. 504-3-0; and Serial No. (10) Raisat Ali for Rs. 693-2-0.
Apart from this list the Court of Wards had in its letter addressed to the High Court while remitting the amount attached, stated that Tahazeebunnisa Begum, the judgment-debtor had agreed to pay a fee of Rs. 10,000 to Mir Akbar Ali Khan. Barrister-at-law for prosecuting her claim in certain land acquisition proceedings, the compensation fixed having been doubled due to the diligent prosecution by the said Akbar Ali Khan.
As nothing was paid to her counsel by the judgment-debtor during her life time a sum of Rs. 5,000 was paid by the Court of Wards and with respect to the further claim of Rs. 5,000 which Shri Akbar Ali Khan made on the ground that he had priority over others for the settlement of his fees, the High Court was requested to exercise its discretion in settling this claim. This claim was also admitted by the learned Original Side Judge and rateable distribution was ordered.
When this revision was heard by a Division Bench of which one of us was a member, it referred this case to a Full Bench because in its view this revision raised certain controversial points of law which it considered to be sufficiently important to be decided by a Full Bench.
The first point related to an advocate''s lien in respect of his fees over the moneys of his client realised in the cause by his efforts so as to give him preference over other creditors in the course of rateable distribution of assets, the second point; raised a serious doubt regarding the entertainability of a revision by a Bench of this High Court against an order passed by a Judge on the Original Side, because under the Hyderabad Code of Civil Procedure, revisions were permissible only against the decisions of the subordinate Courts.
This third point was that, having regard to the doubt expressed as to the maintainability of a revision against the judgment of the Original Side, the decision in ''Surabhi Ramachander Rao v. Rani Venkataratnamma'' reported in 27 D L. R. 284(A), needs a reconsideration on the assumption that a decision of the erstwhile Judicial Committee which functioned in Hyderabad is now not binding upon this High Court in much the same way as the views expressed by His Majesty''s Privy Council in the various cases reported in Indian Appeals are not binding precedents but only persuasive....
With respect to the last two questions raised in the order of reference, we had, apart from the submissions of learned advocates appearing for the respective parties, the able assistance of Sri Vinayakrao Vaidya as amicus curiae who submits that a bench of this High Court has power to entertain revisions against the Original Side and at any rate the cursus curiae having been long established, ought not now to be changed to the detriment of the litigant public who will be with out a remedy in oases which were pending from the decrees and orders passed on the original side of the High Court, before the application of the Indian CPC to Hyderabad.
In order to appreciate this argument, it may be mentioned that the Original Side of the High Court was abolished by Sub-section (1) of Section 3, Hyderabad: High Court (Abolition of Original Jurisdiction) Act, 12 of 1951, the proviso whereof saved the trial of original civil and criminal cases, in which the hearing commenced before the Act came into force and permitted their hearing by the Original Side Judge as if the Act had not been passed, unless the Chief Justice was pleased to direct that the case shall be transferred to the City Civil Court or as the case may be, to the'' Court of the Sessions Judge at Secunderabad.
By virtue of this provision many civil cases were being heard and disposed of by the Original Side Judge as the Chief Justice had not directed the transfer of these cases to the City Civil Court.
In such cases, Shri Vaidya contends, if it is held against a long line of authority that the High Court was not competent to entertain an appeal or revision against a judgment or order of the Original Side Judge, the aggrieved party would be without a remedy, as the provisions of Section 109, CPC do not apply to such cases which have been decided before the application of the CPC on 1-4-1951 and which were pending on the revisional and appellate side of the High Court before that date.
Shri Subbarayudu who appears for Respondent Akbar Ali Khan, oh the other hand, submits that the original side is not a Court subordinate to the High Court within the meaning of Section 615, Hyderabad Code of Civil Procedure, analogous to Section 115, Indian Code of Civil Procedure, inasmuch as both u/s 2(a) of the Manshoor-e-Khusravi and the provisions of the High Court Act, a Judge sitting on the original side is in no way inferior to a Judge on the appellate or revisional side of the High Court and hence no revision would lie against the orders, of a Judge who is of an. equal status and has co-ordinate jurisdiction.
While we have no hesitation in admitting that a Judge of a High Court sitting on the original side or sitting in a Single Bench, Division Bench or a Full Bench, has co-ordinate jurisdiction and is of equal status, yet in exercise of powers conferred under a statute his orders may be subject to an appeal or revision or that his judgment may be overruled by a higher Bench.
It is well recognised that though all Judges are of equal status yet appeals against their judgments were provided under the Letters Patent of some of the High Courts to a Division Bench. The whole question, therefore, in this case is whether an appeal or a revision has been provided for under the law against a judgment of the Original Side of the High Court.
In order to examine this question it will be necessary to refer to the relevant provisions of the various enactments pertaining to this High Court. An English version of Section 6 of the High Court Regulation dated 24th Rabbilaval 1302 H., as amended by Act 5 of 1314 F., is as under:
All civil appeals which, under the High Court Act are competent to be heard and which are against the judgments and orders of the following courts and in which the subject matter of litigation cannot be valued properly or in which the case is valued not more than Rs. 5,000, shall be heard by a Division Bench and the judgment of the Division Bench shall be final....
(i) Original Side of the High Court;
(ii) Sadar-adalat of the Divisions;
(iii) Courts of the City;
(iv) District Courts of Ataraf Balda;
(v) Appeals from any other Courts from which the High Court is competent to hear appeals.
The aforesaid provision specifically vests an appellate jurisdiction in the Division Bench of the High Court against a judgment or order of the Original Side of a High Court. This High Court Regulation, however, was subsequently replaced by the High Court Act 3 of 1337 F., (hereinafter called the High Court Act), Section 1 whereof repeals as from the date it came into force the High Court Regulation of 24th Rabbilaval 1302 H., and Act 5 of 1314 F., and all other laws, orders and gasties (Government Circulars) in so far as they are a repetition of the provisions of the Act or are in conflict with it.
It will thus be seen that though the High Court Act replaces to a great extent the High Court Regulation, Section 1 at any rate, saves the power of appeal to a Division Bench of the High Court from the judgment or orders of the original side. This proposition was not seriously contested by either Mr. Subbarayudu or Mr. Jaleel Ahmed, nor could it be contested, having regard to the well established principle of interpretation of law that an amending Act may, either specifically or by necessary implication, continue certain essential provisions in a repealed Act.
This is particularly so when a repealing Act specifically states that the provisions of the repealed Act, shall to the extent of repugnancy be void. It is also clear that an inconsistency or repugnancy between two statutes necessary to override or repeal the earlier one, must be such that the two cannot be reconciled nor can they stand together.
While this position has not been controverted, learned advocates for the Respondents argue that when a right of appeal is conferred on any Court, it does not necessarily confer a corresponding revisional jurisdiction on that Court and they therefore contend that though an appeal has been specifically provided for against the judgment or order of the Original Side to a Division Bench of a High Court, this does not imply that a revisional jurisdiction has been conferred against such judgments or orders of the Original Side to the said Bench.
Sri Subbarayudu cites the case of ''Debendra Nath Das v. Bibudhendra Mansingh AIR 1918 Cal 973 (B) in support of the aforesaid proposition, but in our view an examination of this case does not support his contention. In that case the question that the High Court had to consider was whether a reversal in an appeal under Clause 15 of the Charter, of a judgment of a Single Judge of the High Court, setting aside the decree of the lower appellate Court, has the effect of affirming the decision of the latter Court, that is the "Court immediately below" within the meaning of Section 110, Code of Civil Procedure.
It was held that a Judge of a High Court sitting alone is not a Court subordinate to the High Court, but performs a function directed to be performed, by the High Court, as such no decision of a single Judge can be revised u/s 115, Code of Civil Procedure. This case must therefore be confined to the particular provisions of the Letters Patent under which special appeal was provided against the judgment of a single Judge.
It is again argued that Section 615, Hyderabad Code of Civil Procedure, confers a revisional jurisdiction on the High Court only against orders of a Court subordinate to it but as the Original Side is part of the High Court it cannot be deemed to be a Court Subordinate to the High Court and there being no other provision in the Hyderabad Code of Civil Procedure, under which revisional power is conferred on the High Court, no revision would lie against orders of the Original Side.
In our view both these contentions do not warrant consideration for the reason that both u/s 17 of the High Court Regulation, as amended by the High Court Act of 1314 F., and explanation to Section 11 of the High Court Act, the appellate side of the High Court had been vested with re-visional jurisdiction against orders of the Original Side of the High Court. Section 17 of the High Court Regulation provides that
a Division Bench or a Full Bench is, by reason of its jurisdiction, competent to pass such orders as it deems necessary in cases whore no appeal lies to the High Court and in which the Court giving judgment has exercised such powers which are not vested in it by law or has not exercised the powers vested in it, or in exercise of its powers, has acted in an illegal way or has committed a gross irregularity.
Under the aforesaid provisions, this High Court was exercising revisional jurisdiction over the Original Side of the High Court. In so far as the subordinate Courts are concerned the Code of Civil Procedure, Act 3 of 1323 F., enforced from 1st Kurdad 1324 F., by Section 615 provided for revisions against orders passed by them. There is, therefore, no question of the Original Side of the High Court being considered as a Court subordinate to the High Court in the sense in which Section 615, Hyderabad CPC contemplates.
The repeal of the High Court Regulation of 1302 H., as amended by Act 5 of 1314 F., by Section 1 of the High Court Act does not repeal the provisions of Section 17 of the said Regulation because under the saving clause of the said section, those provisions are neither inconsistent nor in conflict with, nor have they been repeated in the Act.
This view is further fortified by the explanation (added in 1344 F.) to Section 11 of the High Court Act, which, while providing for the finality of judgments, specifically states that this provision does not mean that the judgments of orders of the Original Side of the High Court will be deemed to be final but that there can be appeals and revisions against them according to procedure (Hasbe Zabitha).
In other words the explanation clearly envisages, if not specifically provides for the non-finality of the judgments pronounced by the original side against which there could be appeals and revisions and the Zabitha, to which it refers, is the Zabitha mentioned in Section 17 of the High Court Regulation which has been saved by Section I of the Act.
That this explanation has since been repealed by the Abolition of Original Jurisdiction Act of 1951 is not relevant for our purposes because this case was pending in revision at the time when it was repealed. One other reason why we consider that a revision lies from the original side to the appellate side is that under the several clauses of the Manshoor-e-Khusravi (Charter) the jurisdiction of the High Court is (i) original (ii) appellate including revision and reference. Since an appeal lies from the orders of the original side as we nave already observed, a revision also would lie by virtue of Clause 7 of the Charter.
We may further observe that there are also a number of judgments of this High Court spread over a long period which have clearly laid down that a revision lies from an order or a judgment of the Original Side of the High Court to a Division Bench and to which we shall presently advert. No doubt some of these cases have been based on the assumption that the Original side is a court subordinate to the Appellate Side of the High Court, either for purposes of Section 615, Hyderabad CPC or Section 18 of the High Court Regulation.
This apart, the cursus curiae is of entertaining revisions against judgments and orders of Original Side without such a right being challenged for over half-a-century and is well entrenched and firmly established as to give it the force of law.
The question of jurisdiction of the Appellate Side to entertain revisions from the judgments or orders of the Original Side came up for consideration before a Full Bench of this High Court 47 years ago in two cases.
In "Turab Jung v. Hydar Yar Jung'' 16 A''in Deccan 359 (C), it was decided that the Appellate Side of the High Court according to Zabitha (procedure) could entertain revisions against the orders of the Original Side and that the decisions in ''In re Premji Trikamdas 17 Bom 514(D) and In re Gibbons 14 Cal 42 (FB) (E), have been decided on the particular provisions relating to those High Courts and are inapplicable to this High Court.
In this case a reference _was made to the amended Section 17 of the High Court Regulation and it was observed that the Original Side of the High Court has always been considered as a Court subordinate to the Appellate Side. One of the learned Judges, Rai Balmukund, dealt in detail with Section 17 and said that it applied to all cases in which no appeal lay to the High Court whether it is from a subordinate Court or from the Original Side of the High Court and that this was implicit, also on a reading of Sections 19, 22 and 23 of the said Regulation.
In that case it was sought to be contended that having regard to Section 530 of Gashti No. 20 of 1302 F., which was later repealed by the Hyderabad Code of Civil Procedure, there was no such power of revision against the orders of the Original Side to the Appellate Side; but this contention was rejected on the ground that the language of the section was clear and that when the words "MajIis-e-Aliya" were used in Section 17 of the Regulation, they meant a Division Bench or a Full Bench of the High Court and consequently there was nothing in the said provision to prohibit the filing of revisions from the orders passed by Original Side to the Appellate Side of the High Court.
The next case is the famous Full Bench case of ''Hurmosji v. Administrator General of Bombay 9 D LR 32 (F) (decided in 1328 F.) in which an objection was taken that the Full Bench of the High Court had no power to revise the orders passed by the Original Side; but after an exhaustive review of the history of the High Court Mirza Yar Jung C.J., with whom Jeevan Yar Jung and Akbar Yar Jung, JJ., agreed, held that the Full'' Bench had jurisdiction u/s 615, Hyderabad Code of Civil Procedure, on the assumption that the Original Side was a Court subordinate to the Full Bench.
With great respect, in so far as this point is concerned, the Full Bench did not consider the effect of the saving clause of Section 1 of the High Court Act and the continued operation of Section 17 of the High Court Regulation.
Though the learned Chief Justice appears to have considered ''16 in Deccan 222(G)'' (presumably the reference is ''16 A'' in Deccan 359 (C)'') and ''14. A'' in Deccan 138 (H)'', he did not refer to Section 17 of the High Court Regulation or the effect of repeal and the saving in Section 1 of the High Court Act but he based his opinion on the sole ground that if a contrary view was taken it would cause hardship in cases where no appeals could be filed against the orders of the Original side.
It was further observed on the basis of Jhabba Lal Vs. Shib Charan Das and Others, (I), that a revision can be filed in the Court to which ordinarily an appeal lies and therefore since appeals are filed from the Original Side of the High Court to a Bench of the High Court, a revision would lie.
In ''Mohd. Hussainuzzama v. Major Mohd. Shariff 22 D LR 37 (J), Nawab Asgar Yar Jung J., sitting on the original side expressed the view that appeals and revisions against orders of the Original Side have always been filed from a long time even upto now (1340 F.) on the Appellate Side of the High Court and it was therefore held that the Original Side of the High Court is a Court subordinate to the High Court which is evident from Section 18 of the High Court. Regulation which deals with the powers of High Court to transfer cases from one Court to another or to itself.
In this case all the provisions of the High Court Act, the Manshoor-e-Khusravi and the High Court Regulation were considered, which we find it unnecessary to recapitulate except to say that the practice of entertaining revisions against orders of the Original Side on the Appellate Side of the High Court was well recognised and warranted by law even after the High Court Act was passed.
The erstwhile State Judicial Committee considered this question in 27 D LR 284 (A) and laid down that the Original Side of the High Court was a Court subordinate to the Appellate Side and consequently a bench of the High Court had revisional jurisdiction over the Original Side.
One of the points for consideration by this Full Bench is whether the judgments of erstwhile Judicial Committee are binding upon this Court and have to be considered in much the same way as the Privy Council judgments which are not binding but persuasive precedents.
It is true that the opinion expressed in the Judicial Committee should be confined to the decision in that particular case and the Firman of the Nizam confirming the advice tendered by the Judicial Committee relates only to the operative order of the advice tendered to him. Though this is so the views expressed by the erstwhile Judicial Committee have always been treated with great respect and we see no reason to differ from this practice.
The Judicial Committee in the above referred 27 D LR 284 (A) case was considering the objection raised before it that the original side; of the High Court was not a subordinate Court within the meaning of Section 615, Hyderabad Code of Civil Procedure, in order to vest in the appellate side of the High Court a revisional jurisdiction over its orders for the reason that every Judge of the High Court was of an equal status except for the Chief Justice who had special power of constituting benches.
After considering the detailed arguments addressed by learned advocates and gasti 2, Divani 1299 P., PL4 of Act 5 of 1314 P.; 16 A'' in Deccan 359 (C) 9 D LR 32 (F) and other cases it was observed by the Judicial Committee that prior to the passing of the High Court Act, the original side of the High Court was, for the purpose of appeal and revision, considered to be a Court Subordinate to the Pull Bench of the High Court and it was further observed that while this may have been so before the High Court Act was passed in 1337 P., the original side could be considered as a subordinate Court after the High Court Act was enforced.
This question was answered in the affirmative because the test of a Court being subordinate, according to the view taken in that ease, was that if a Court is vested with powers of appeal against another Court, the Court from which appeals are filed is a Court subordinate to it: accordingly it was held that by reason of Sections 6 and 9 of the High Court Act (before its amendment in 1344 P.) a Division Bench in cases in which the value did not exceed Rs. 10,000 and a Pull Bench in cases where the value was Rs. 10,000 or upwards, had appellate jurisdiction over the original side of the High Court.
It was pointed out by the learned advocates for the Respondents and in our view quite rightly, that Sections 6 and 9 do not specifically confer any appellate jurisdiction on the appellate side from the judgments and decrees of the original side but only specify what cases can be heard by a Division Bench and what cases by a Full Bench.
The judgment of the Judicial Committee, therefore, did not deal with the question of interpretation of the High Court Act from this aspect. In so far as the case of - ''Venkata Reddy v. Govt. 35 D LR 282 (K), to which one of us was a party is concerned, it merely followed 27 D LR 284 (A), as binding upon it.
To the extent that both 27 DLR 284 (A) and 35 DLR 282 (K) arc cases in which the practice of entertaining revisions by an appellate side of the High Court, against original side, has been recognised, they are useful in establishing that the cursus curiae, over a long period of about fifty years has given this practice the force of law.
The provisions of law relating to the filing of appeals and revisions have been construed long before today and have been understood by lawyers and judges in this State as having conferred on the appellate side a revisional jurisdiction against the orders of the original side. It would not now be proper for us to be invited so cavalierly to unsettle a well entrenched practice and create hardships as indeed every execution petition will be challenged on the ground that the decree passed in revision is without-jurisdiction and invalid.
There is high authority of the Privy Council for the view we have taken. In ''Ravi Veeraraghavulu v. B. Venkata Narasimha Naidu AIR 1914 PC 87 (L), it was observed by their Lordships of the Privy Council at page 89, when the right of second appeal to the High Court in cases arising under Act 8 of 1865, was challenged, that that point
has been expressly decided in - ''Veeraswamy v. Manager, Pittapur Estate 26 Mad 518 (M) and the practice appears to have been, ever since the passing of the Act, for such appeals to be preferred to the High Court. Their Lordships would not be disposed to interfere with such a long-standing practice, even if they thought there was an implied rule against second appeals lying from the decisions of the District Judge with respect to adjudications under the Act by the Collector.
Again in - ''Brij Narain v. Mangla Prasad AIR 1924 PC 50 (N) Lord Dunedin J., observed at page 55 with respect to pleas not actually taken and those that have been taken but overruled in several cases:
It is true that the point was not actually taken so far as appears in any of these cases, but when a long series of cases extending over a long period of time, the parties being represented by eminent counsel is decided in one way, and if an evident plea had been taken and upheld the decisions would have been the other way, there arises an irresistible conclusion that the plea was not taken because it was felt to be bad.
The plea, however, was actually taken in - ''Badri Prasad v. Madan Lal 15 All 75 (PB) (O) and was rejected by a Full Bench. In ''Govind Krishna v. Sakharam Narayan 28 Bom 383 (P) Chandavarkar J., says ''The law is now well established that under the Hindu law the pious obligation of a son to pay his father''s debts exists whether the father is alive or dead.'' The point was again taken and negatived in - ''Ramasami Nadan v. Ulaganatha Goundan 22 Mad 49 (Q).
In our view .therefore both upon the interpretation of the High Court Regulation and the High Court Act, and upon the principle of stare decisis, we are of the view that the appellate side of the High Court does have revisional jurisdiction over the orders of the original side of the High Court.
Now adverting to the merits of the revision, learned advocate for the revision-Petitioner contends inter alia (1) that the order under revision did not direct the deduction of costs incurred by the Petitioner-decree-holder in execution of his decree which he was bound to do u/s 371, Hyd. CPC (Section 73 Code of Civil Procedure), (2) that under Sections 300 and 371, Hyd. CPC (Sections 03 and 73 Code of Civil Procedure,) all decree holders should have applied to the distributing Court for rateable distribution after first having their decrees transferred before the assets were realised by the Court.
As this was not done no rateable distribution can be ordered in execution of their respective decrees; (3) that Moinunnisa Begum''s execution was dismissed for default prior to the receipt of assets and as there was no execution petition pending as such on that day, she will not be entitled to rateable distribution; and (4) that the Court was wrong in considering the claim of Shri Akbar Ali Khan for rateable distribution on the ground of his supposed lien when he had no decree.
The first contention of the learned advocate via that the executing Court ought to have ordered the deduction of the revision-Petitioner''s costs incurred in executing his decree is to doubt sound nor is it contested by the learned advocates for the Respondents, Sarvashri Jaleel Ahmed, Subbarayudu and Ashoka. An English rendering of Section 371, Hyd. Code of Civil Procedure, is in the following terms:
Section 371 (1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of their respective decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation shall be rateably distributed among all such persons:
And if any decree-holder had to take any special proceedings to have the property of the judgment-debtor capable of being declared auctionable on account of which the other decree-holders who have not taken part in these proceedings have been benefited, then the Court, in its discretion, may order the payment to the decree-holder who took steps as against those decree-holders who did not take steps, of an amount which does not exceed 5 per cent, of the amount, to which the decree-holder is entitled on rateable distribution.
Provided that:
(a) Where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;
(b) Where any property liable to be sold in execution of a decree is subject to a mortgage or charge the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold:
(c) Where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied:
(i) in defraying the expenses of the sale;
(ii) in discharging the amount due under the decree;
(iii) in discharging the interest and principal monies due on subsequent incumbrances (if any) and
(iv) rateably among the holders of decrees for the payment of money against the judgment- debtor, who have, prior to the sale of the property, made application for execution to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof:
(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.
(3) Nothing in this section affects any right of the Government.
It is clear from the very wording of the section itself that the Court can only direct that amount to be rateably distributed among the various decree holders which, after deduction of costs of realisation, is available for that purpose. In this view of the matter, the revision Petitioner would be entitled to the costs of Rs. 534-1-8 incurred by him in both the decrees.
The next two contentions of the Petitioner are that unless the decrees are transferred to the distributing Court and applications are made by the various decree-holders for rateable distribution before the receipt of the assets in the Court, no rateable distribution can be ordered u/s 371, Hyd. Code of Civil Procedure.
With respect to Moinunnisa Begum''s decree, specified in item No. 2 of the list, sent by Court of Wards, it was contended on behalf of the revision Petitioner that the execution petition was dismissed for non-payment of process fee on 6-10-50, as such no execution of the decree was pending on the date when the money was received and that therefore she would not be en-titled to a rateable distribution.
We may observe that Moinunnisa Begum obtained her decree on 17-9-1356 P., in suit No. 25/1 of 135 C.P., on the file of 4th Judge, City Civil Court, for Rs. 4,307-6-0. Thereafter she took execution proceedings on 18th Aban, 1358 P., (18-9-49) and obtained an attachment addressed to the Board of Revenue on 5-4-50.
The decree was subsequently transferred to the original side of the High'' Court for rateable distribution on 13-6-50 on the ground that the revision Petitioner had attached moneys with the Revenue Board which were likely to be sent to that Court. An execution petition was also filed in the High Court on 15-6-50, which was dismissed for default of payment on 6-10-50.
It may also be pointed out that the revision Petitioner filed his execution petition on 8th Ban-man, 1359 P., corresponding to 8-12-1949 and the attachment order in his decree was passed on 8-3-50, i.e., after Moinunnisa Begum had filed an execution petition. It is therefore necessary to see whether having regard to the fact that there was no execution petition pending in Moinunnisa''s decree on the date when the moneys were received, she would be entitled to a rateable distribution.
All that is required u/s 371, Hyd. Code of Civil Procedure, for a rateable distribution to a decree- holder is that he should have made an application to the Court for execution of the decree against the same judgment-debtor and that he had not obtained satisfaction therefor.
Learned advocate for revision Petitioner, however, cites the case of - AIR 1937 16 (Nagpur) (R), following - N M.L. Chettyar v. Official Assignee AIR 1935 Rang 135 (S), in favour of the proposition that the execution petition should not only have been filed before the amount is received in Court, but it should have been pending execution and not have been dismissed for default as in this case. In our view this proposition is ''not warranted by a plain reading of Section 371.
Once an application for execution has been made it does not matter if it is dismissed and was not pending when the amount was received in Court, provided it has not been satisfied or barred by limitation. In other words, the decree in execution must be executable at the time when the amount is received in Court for rateable distribution.
This is also the view taken by the Patna High Court in interpreting Section 73 of Code of Civil Procedure, which corresponds to Section 371 of Hyd. Code of Civil Procedure, in - (Kaviraj) Bimala Nanda Tarakatirtha Vs. Dhirendra Nath Chandra and Others, (T). In this case both AIR 1935 135 (S) and - ''Tiruchittambala Chetty v. Seshayyangar 4 Mad 383 ''(U) were distinguished on the ground that the execution petition had been struck off prior to the application for rateable distribution.
The decision of the Calcutta High Court In - ''Byomkash Chakrabutty v. Hemanta Kumar Biswas'' AIR 1915 Cal 16 (V), in which it was held that the dismissal of an execution petition after the application for rateable distribution did not affect the right to share in the distribution was followed.
In the Nagpur Case of - ''Narhar Gopal Kanti v. Lahanu Punjaji (R)'', it was held, following AIR 1935 Rang 135 (S) and. dissenting from - ''Gopichand v. Amir Chand AIR 1933 Pesh 52 (W), that for the purpose of Section 73, there must be a subsisting application for execution at the time when the- assets are received. This is a Single Bench case of Pollock J., in which he merely-agreed with the view taken by AIR 1935 Rang 135 (S) and dissented from Peshawar''s case, (W) without assigning any reasons therefor.
With great respect we are not in agreement with this view because a plain reading of Section 371 of Hyd. Code of Civil Procedure, merely makes it necessary to file an execution petition before the assets are received in order to acquire right to obtain rateable distribution. When once that is done we think the decree-holder is entitled to obtain a rateable distribution as long as his right to execute the decree is not barred by limitation.
It is equally clear on a reading of the said section that there is no justification for the interpretation sought to be put by the learned advocate for the Petitioner, that the decree-holders must, as a sine qua non, for obtaining orders for rateable distribution, have their decrees transferred to the distributing Court and apply for rateable distribution to that Court, before the assets are received in that Court.
All that the section requires is that the decree-holder in order to be entitled to the rateable distribution should have taken execution proceedings before the assets are received in the Court distributing them.
The learned advocate for the revision Petitioner has relied on the case of - Behari Lal Vs. Ale Nabi and Others, (X). In that case it would appear that only after the money was paid in the Imperial Bank on 11-9-31, in full payment of the purchase money of the property sold in execution of Chiraunji Lal''s decree against Jagdish Prasad, one Ale Nabi who had a claim against the same judgment-debtor obtained a decree on the same date and immediately took a transfer certificate and presented it to the Munsarim of the Court in which the decree of Chiraunji Lal was being executed.
There was no doubt that the application for execution was presented only after the assets were received. It was held by the Allahabad High Court that the Lower Court was right in holding that the application of Ale Nabe for rateable distribution could not be maintained u/s 73, Code of Civil Procedure. This case, therefore, is of no assistance to the revision-Petitioner. On the other hand it goes against his contention.
If we look at the applications of the various decree-holders who obtained rateable distribution from the aforesaid point of view, it will be found that the only decree in which no execution proceedings were taken till after the receipt of the money in the High Court is that of Sajjad Ali for Rs. 4,361.
In fact Sajjad Ali had not yet obtained a decree on 2-11-1950, when the money was received in the High Court. He obtained his decree on 20-11-1950 and took proceedings to execute it by having it transferred to the High Court on 22-11-1950.
The two conditions requisite for the applicability of Section 371 are that the decree-holder must have a money decree against the same person and that he must have applied for execution of that decree before the assets were realised. It will thus be seen that the necessary pre-requisite set out In Section 371, Hyd. CPC entitling Sajjad Ali to a rateable distribution of the assets received by the High Court in the execution of the revision Petitioner''s decree against the same judgment-debtor, has not been fulfilled.
It is only when an application for execution of the decree has been made before the realisation of assets that Section 371, Hyd. Code of Civil Procedure, applies; nor does the attachment before judgment which was made in the suit of Sajjad Ali create any interest in the property attached. In our view, the Court had no jurisdiction to direct a rateable distribution of Sajjad Ali''s decree for Rs. 4,361.
It is contended by Shri Jaleel Ahmed, the learned advocate for Sajjad Ali that:
(i) as the Court has not acted with material irregularity or illegality in the process of assuming jurisdiction, we cannot exercise the revisional jurisdiction conferred by Section 115, Code of Civil Procedure.
(ii) as the revision-Petitioner could file a suit against Sajjad Ali for the recovery of an amount paid to a person who was not entitled to receive it under Sub-section (2) of Section 371 and thus obtain a more convenient and efficacious remedy, we should not interfere with the order of the lower Court in exercise of our revisional jurisdiction.
In our view if we have jurisdiction to entertain this revision petition as we have already held we have, the second contention of the learned advocate would resolve itself into a question as to whether we should exercise our discretion.
With respect to the first point - ''Sir Ashutosh Mukerjee and Newbould JJ., in ''Madhu Sudan. v. Rash Mohan 1916 Cal 371 (Y) laid down that a High Court is competent to interfere with an erroneous order of a subordinate Court when as a result of that order, though erroneous in law, that Court has assumed a jurisdiction which it did not possess or has declined a jurisdiction which was vested in it by law.
In that case also the Petitioner had obtained, a decree long prior to the decree of Sens who sought to obtain a rateable distribution. About 13 days after the Petitioner had attached the moveable property in execution of the decree and brought them to the Court ,the Sens filed a suit-and had moveables in Court attached and obtained an order for rateable distribution.
The High Court of Calcutta in exercise of its-revisional jurisdiction set aside the order of rateable distribution made by the lower Court as it acted contrary to the conditions set out in Section 73, Code of Civil Procedure.
Their Lordships of the Privy Council in - ''Balakrishna v. Vasudeva Ayyar AIR 1917 PC 71 at pp. ''73-74 (Z) observed:
the 115th section of the CPC enables the High Court, in a case in which No. appeal lies, to call for the record of any case if the Court by which the case was decided appears, to have acted in the exercise of a jurisdiction not vested in it by law, or to have failed to have, exercised a jurisdiction vested in it, or to have exercised its jurisdiction illegally or with material irregularity and further enables it to pass such an order in the case as the Court may think it fit.
It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it.
Once again their Lordships of the Privy Council" in - AIR 1949 239 (Privy Council) at p. 242(Z1) laid down the same principle lm the following passage:
There have been a very large number of decisions of Indian High Courts on Section 115 to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court, does not by itself involve that the subordinate Court has acted illegally or with material irregularity/ so as to justify interference in revision under Sub-section (c), nevertheless, If the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b) and subs, (c) can be ignored.
In this case it is undeniable that the original side exercised a jurisdiction which it did not possess u/s 371, Hyd. Code of Civil Procedure, as in the Calcutta case, which would justify the exercise of the revisional powers.
It is no doubt true that the exercise of jurisdiction is a discretionary one and though as a matter of practice the High Court will not interfere ordinarily if there is another convenient remedy open to the applicant, it cannot be laid down as an inflexible rule that it will not interfere at all. It is well to remember that the remedy by way of a separate suit may not be a convenient remedy.
The balance of convenience in our view is in favour of the exercise of our revisional jurisdiction rather than to direct the revision Petitioner to file a suit and undergo the inconveniences and hardship for no fault of his.
With reference to Rs. 5,000 claimed by Shri Akbar Ali Khan, Barrister-at-law being the balance of his fees of Rs. 10,000 due to him from the judgment-debtor, it has been strenuously con-tended by the learned advocate for the revision Petitioner that inasmuch as Shri Akbar Ali Khan did not obtain a decree, nor did he file any claim under any of the provisions of the Court of Wards Act, lie would not be entitled to a rateable distribution.
It is undoubtedly true that u/s 371, Hyd. CPC no rateable distribution can be allowed because Shri Akbar Ali Khan is not a decree-holder. The learned original side Judge however, did not direct a rateable distribution u/s 371, Hyd. CPC but ordered it on the basis of an attorney''s lien as enunciated in Tyabji, Dayabhai and Co. Vs. Jetha Devji and Co., (Z2). It is argued by the learned advocate for the revision-Petitioner that the Bombay case was dealing with a solicitor''s lien and is not applicable to a case of an advocate much less that of a barrister who cannot sue for fees.
There is, in our view, no force in the contention that a barrister enrolled either under the Hyderabad Legal Practitioners'' Act or under the Bar Councils Act cannot sue for fees. There is of course an authority of this High Court in - ''Liaqatunnissa Begum v. Badrunnissa Begum 30 D LR 480 (Z3), which incidentally appears to have indicated a view that barristers cannot sue for fees.
This observation was later explained by another Bench of this High Court in the case of - ''Seshmahal v. Vishwanath Das 39 D LR 513 (Z4) as relating to the position of barristers in England and not pertaining to the case of barristers enrolled and practising in the Hyderabad High Court under the law governing their enrolment and practice.
In the case of - Nihal Chand Shastri Vs. Dilawar Khan and Others, (Z5), a Full Bench of the Allahabad High Court held a similar view namely that a barrister enrolled as an advocate of the Allahabad High Court" can bring a suit against his client for the recovery of his fees settled for his professional services in acting and pleading for the client.
It is therefore abundantly clear that a barrister though he cannot in England sue for fees under the Common law or enter into a contract with his client for fees, does not suffer from any incapacity in India, because he is enrolled as an advocate under the law governing the enrolment and practice of advocates and can sue for his fees-as any other non-barrister advocate.
The question in this case is not whether a barrister can sue for his fees, but whether a. barrister or an advocate can claim a right of lien. The term lien'' connotes a right possessed by one to control or to hold and retain or enforce a charge against the property of another until some claim, of the former is paid or satisfied.
It is a right of retention, that is, possession of another''s property for the satisfaction of some-charge attached to it. The origin of the right of lien has been ascribed to the Roman Law which gave a right to the seller similar to that given by the Common Law, for if the buyer did not pay the money when it was due and the seller had not delivered the goods he might retain possession of them as a pledge.
The Roman Law went further and gave a right to the vendee, even after possession was given, to seize the goods if the price was not paid. The doctrine of lien which arose out of natural equity and commercial necessity was recognised at an early period and as time went on was extended in its application on consideration of policy, convenience and justice.
The position under the English law therefore was that there were several kinds of liens - common law lien, equitable, maritime or statutory liens. We are not concerned with either the maritime or the statutory lien, but only with the common law and the equitable lien as they have a bearing on the lien which a solicitor has for the recovery of his costs against his client.
The Common law lien arises only in cases of possession or transfer of property usually under a bailment and confers the right to retain the property until the claim is paid. It may be either for the satisfaction of a common law obligation contracted in respect of the property itself, that is a particular or specific lien, or for the satisfaction of a balance due from the owner of the property to the lienor. A general lien is confined to the amount due in respect of the property itself.
An equitable lien differs from a common law lien in this important particular that it is not dependent on continued possession of the subject-matter. It is one which was given effect to by Courts of Equity and arose usually constructively. In so far as it pertains to a solicitor''s lion, the following statement in Halsbury''s Laws of England, Vol. 20 at page 578 is pertinent:
A solicitor is entitled not only to a common law lien for his charges upon documents in his possession belonging to his clients, but also to a lien of an equitable nature upon the fruits or judgments or orders obtained by h m in favour of his clients in the suit in which he was employed for, his costs in that suit.
It may be observed that in Vol. 31 of Halsbury''s Laws of England this equitable lien is included as one of the two liens possessed by the solicitor at common law. At page 238 it is stated as under:
At common law a solicitor has two rights which are termed liens: the first is a right to-retain property already in his possession until he shall have been paid costs due to him in his professional capacity; the second is a right to ask the Court to direct that personal property recovered under a judgment obtained by the exertions stand as security for his costs of such recovery.
It is quite likely that the equitable lien which is-stated as the second right in the above passage was recognised by the common law as one of the exceptions to the common law liens of a solicitor which made possession of the documents, papers etc., of his clients a sine qua non of its exercise, as for instance in the case of liens for seamen''s wages or bottomry bonds.
We will now examine to what extent the right of lien possessed by a solicitor in England is recognised in India and whether it is applicable to advocates. In ''Re. K. Rajagopala Ayyangar AIR 1942 Mad 553 (SB) (Z6) Leach C. J., no doubt, did equate the functions of an advocate in India with those of a solicitor and barrister, but this he did only while considering the question of professional misconduct.
In that case an advocate had advanced certain sums of monies to a destitute client who had a just cause and the point for determination was whether this act of the advocate could be considered as a professional misconduct. If looked at purely from the ethical point of view of the functions of an advocate, which correspond to those of a barrister, it would certainly be a misconduct, as no barrister in England is permitted to contact his client or act for him. The learned Chief Justice, dealing with this aspect of the case observed at page 554:
...In this country a pleader, like the advocate combines the functions of the solicitor and the barrister in England. He does the solicitor''s part of the work and he pleads in Court. As he fulfils both roles he must be subject to the disabilities of both. There would be nothing improper for a solicitor in the circumstances of this case to advance monies to his client, but it would be improper for a barrister briefed by a solicitor to do so and the higher standard must be applied.
The fact that an advocate discharges the functions which in England correspond to those of solicitors and barristers, does not necessarily imply that he has a right of lien similar to that which a solicitor possesses under the common law of England.
In the case of Tyabji, Dayabhai and Co. Vs. Jetha Devji and Co., (Z2)'', which was relied upon by the learned original side Judge, the question was whether solicitors in Bombay have first a possessory lien by reason of certain property like title deed being in their hands, and secondly, a particular lien which does not depend on actual possession of the property, but which depends entirely on different principles.
Those principles have been based upon the common law of England under which the solicitors, before the passing of the Solicitors Act of 1860 possessed; and which were held applicable to the presidency towns of Bombay, Madras and Calcutta by a number of decisions of those Courts. Marten C. J., made a very significant observation in this respect at page 544:
In the first place it must be clearly understood that the rights and duties of attorney are in no way part of the indigenous law or practice in India. Their profession originates from England; it grew up under the English common law and it is clear that it was the common law which governed their rights and duties in the King''s Courts established by the Supreme Court Charter of 1823 to which Courts our present High Court, is the successor.
We have recently in two important cases had to consider in this Court the jurisdiction which we inherit from the Supreme Court. It is clear, as has already been pointed out in Hirabai Jehangir Mistry Vs. Dinshaw Edulji Karkaria, (Z 7); and in the recent Special Bench case of Hatimbhai Hassanally Vs. Framroz Eduljee Dinshaw, (Z8) that the jurisdiction of the Court of King''s Bene(sic) in England and that of equity in England were conferred upon the Supreme Court by inter alia, Clauses 5 and 36 of the Supreme Court Charter of 1823, counting those clauses from the operative part and neglecting the recitals.
The rights thus possessed by solicitors in the, King''s Courts of the presidency towns, established by the Supreme Court Charter of 1823, arose out of the application of the common law and the law of equity as administered in England.
In the case of Damodar Das Vs. Morgan and Co., (Z 9), after citing with approval the above passage of Marten, C. J., in ''Tyabji''s case'', (Z 2) Panckridge J., observed at page 343:
...Mutatis mutandis those words appear to me to apply to the Calcutta High Court. I take the learned Chief Justice''s words as amounting to a statement that the rights of an attorney in India are the same as the rights of a solicitor in England, except in so far as the latter have been diminished or increased by statute.
The possessory lien which a solicitor has under the common law corresponds to the lien which an attorney has u/s 171, Indian Contract Act. In the Calcutta case it was sought to be argued that if a passive or retaining lien had originally existed under the common law it had been taken away by Section 171, Contract Act. This argument was however repelled on the ground that
whatever be the meaning of Section 171, Contract Act, it has not the effect of depriving attorneys of the passive or retaining lien which they possessed prior to the passing of the Contract Act.
Venkata Subba Rao J., also in ''Ghulam Moideen Sahib v. Comer Sahib AIR 1931 Mad 183 (Z 10), after referring to the views of Marten C. J., in Tyabji, Dayabhai and Co. Vs. Jetha Devji and Co., (Z 2)'', cited with approval the following passage of Sir Charles Sargent C. J., in ''Devakabai v. Jefferson 10 Bom 248 (Z 11):
It is to be borne in mind that the solicitor''s lien in the High Courts of India is governed exclusively by the law as it existed in English Courts before the passing of 23 and 24 Vic, Chapter, 127 (the Solicitors Act I860) by which that lien was very much extended. By that law the solicitor had lien for his costs of any funds or sum of money recovered for, or which became payable to his client in the suit.
When Sir Charles Sargent C. J., in the above referred case and Panckridge J., in the Calcutta case, speak of the law in India pertaining to the solicitors being in conformity with the common law of England or the right of an attorney in India being the same as the right of a solicitor in England, their observations must be confined to the rights of solicitors in the presidency towns, which rights are enmeshed in the historical background pertaining to the application of the laws of England to the presidency towns.
It was by the Charter of George I of 1726 there was introduced into all the three presidency towns a Mayors Court which was a Court of the king of England applying the law of England both common and statute law as it stood in 1726.
It is not however necessary for our purposes to trace the subsequent history, of the attempts to introduce the English law to the whole of India but suffice it to say as observed by Sir George Rankin that the attempt to introduce the English Law in Hegel''s phrase ''out of a pistol'' to the whole of British India was abortive and ultimately gave way to the preparation and promulgation of comprehensive codes covering both criminal and civil matters.
It would therefore not be true to say that the English Law was at any time introduced to the whole of India of to the whole of British India. In our considered view, whatever be the position with respect to the presidency towns, the rules of common law or the law of equity as administered in England were not enforced in British India as a whole and particularly in this State which was not a part of British India. Nor does Section 172, Hyderabad Contract Act confer even the rights of a possessary lion on an attorney similar to that, conferred by the analogous B. 171, Indian Contract Act.
In ''S(Sic)lum Eshwarayya v. Devi Singh AIR 1953 Hyd 289 (FB) (Z 12), a Full Bench of this High Court to which two of us were parties, dealing with the question whether the common law rule of a debtor following the creditor was applicable to Hyderabad, we observed at page 292 as under:
Whatever may be historical genesis of the importation or intermixture of this and other English rules of common law with, those laws of British India, there appears to be no justification for the acceptance of this rule in so far as what was then H. E. H. the Nizam''s Dommions (Hyderabad State).
It will thus be seen that the lien which a solicitor possesses, arises either under the law of England in places to which it was applied and which was not abrogated by any legislation to the I contrary or under the Indian Contract Act or rules of the High Court which it is competent to make in this behalf.
The Madras High Court in (Kota) Potharaju--Prisoner Vs. Emperor, (Z 13), was dealing with the question whether an advocate has a lien over the estate of an insolvent for certain work done in a probate proceedings in respect of a will of which the insolvent was the executor and a legatee and also for other work'' done by him on behalf of the insolvent.
After referring to the case of AIR 1927 Bom 542 (Z 2)'', it was held by Cornish J., with whom Beasley C. J., agreed that that case related to only solicitors but as the Appellant was an advocate and not a solicitor or an attorney, the. only possible ground for supporting a claim to such a lien in his favour would be. an express agreement by the client to that effect.
It is true that in Nihal Chand Shastri Vs. Dilawar Khan and Others, (Z5)'', at p. 419 there are observations to the effect that a barrister who is an advocate of a High Court of Allahabad may have a lien on any papers of the litigant or money, but that was based on Rule 14 Chapter 15 of the Allahabad High Court Rules and not on the Common Law ''Right which, ''it was expressly stated by their Lordships did not apply.
A lien similar to a possessary lien is given to the pleaders u/s 30(b) of the Bombay Pleaders Act. There may be similar Acts in other States governing this matter but in so far as the law before the application of Indian Laws to Hyderabad is concerned no provision was made under the Hyderabad Legal Practitioners Act nor under the Hyderabad Contract Act and there could there-fore be no question of a lien analogous to that possessed by solicitors in the presidency towns being possessed by barristers or advocates enrolled tinder the laws governing them.
It is however not necessary for us in view of the particular facts of this case to decide whether an advocate has or has not a right of lien to retain the papers and documents of his client in his possession for fees due to him on the analogy of the right possessed by an attorney u/s 171, Indian Contract Act.
But even if a lien analogous to that of a solicitor or attorney had existed it is only a lien to retain moneys and papers already in the possession of a lawyer or a right to ask the Court to direct that money and personal property recovered in a judgment obtained by the exertions of such advocate, may stand as security for the costs of such recovery.
But in this case it is admitted that Shri Akbar Ali Khan appeared before the Compensation Officer and if he had such a right of lien, which as we have already stated he has not, that lien could only be exercised in so far as property or money belonging to Tahzeebunnisa was in possession of the Compensation Officer but not with respect to moneys in the hands of third parties viz. the Court of Wards.
In any view of the matter, we think that the order for rateable distribution towards the unpaid balance of Shri Akbar Ali Khan''s fee is not warranted and is without jurisdiction.
In the result we partly allow the revision with proportionate costs, set aside the order of the Original Side Judge to the extent of Sajjad Ali''s decree and Shri Akbar Ali Khan''s claim and direct rateable distribution to be made between the revision Petitioner and Moinunnisa Begum (Serial No. 2) Shri Kishen (Serial No. 4) Tahanatunnisa Begum (Serial No. 90) and Mir Riasat Ali (Serial No. 10) after first deducting the costs incurred by the revision Petitioner in attaching and bringing to the Court the amount to be rateably distributed.