Sohanlal Soni Vs. Mani Ram - Court Judgment

Excerpt:
advocates act, 1961 - section 43 and civil procedure code - section 38--disciplinary committee of bar council awarding costs--procedure for execution thereof.;normally a decree is executed by a court which passes it or by a court to which such decree is sent for execution. the high court has not passed the order for costs and, therefore, the execution petition cannot be made to this court. it will be for the petitioner to apply for execution before the disciplinary committee of the bar council itself and then have the decree transferred to such a court as can execute the decree. - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s).....orderkan singh, j.1. the petitioner has filed an application for execution of an order of the disciplinary committee no. 1 of the bar council of rajasthan awarding rs. 150/- as costs to the petitioner against the respondent. the office has raised an objection that the execution application is not maintainable and this is how the matter has been placed before me for orders.2. the respondent had made a complaint against the petitioner before the bar council of rajasthan for taking disciplinary action against him on certain grounds with which we are not concerned at the moment. the bar council of rajasthan constituted a disciplinary committee consisting of shri s. k. jindal advocate, chairman, and servashri s. n. purohit and b. m. singhvi, advocates as members. after making an inquiry the.....

Judgment:
ORDER

Kan Singh, J.

1. The petitioner has filed an application for execution of an order of the Disciplinary Committee No. 1 of the Bar Council of Rajasthan awarding Rs. 150/- as costs to the petitioner against the respondent. The Office has raised an objection that the execution application is not maintainable and this is how the matter has been placed before me for orders.

2. The respondent had made a complaint against the petitioner before the Bar Council of Rajasthan for taking disciplinary action against him on certain grounds with which we are not concerned at the moment. The Bar Council of Rajasthan constituted a disciplinary committee consisting of Shri S. K. Jindal Advocate, Chairman, and Servashri S. N. Purohit and B. M. Singhvi, Advocates as members. After making an inquiry the Disciplinary Committee dismissed the complaint, but ordered the complainant (respondent) to pay Rs. 150/- as costs to the petitioner. The petitioner applied for execution before the Disciplinary Committee and the latter transferred the application to the District Court. Jodhpur for execution. The learned District Judge, however, dismissed that application saving that the petitioner realised that the application should have been filed before the High Court who alone could have transferred it for execution to the District Court.

3. It is in these circumstances that the petitioner has filed the present execution application.

4. The question is of some importance as it relates to the Procedure to be followed for the execution of the orders of the Disciplinary Committee of the Bar Council. I may read the relevant statutory provisions. Section 43 of the Advocates Act. 1961 provides:

'Section 43. Cost of Proceedings before a disciplinary committee -- The disciplinary committee of a Bar Council may make such order as to the cost of any proceedings before it as it may deem fit and any such order shall be executable as if it were an order-- (a) in the case of an order of the disciplinary committee of the Bar Council of India, of the Supreme Court;

(b) in the case of an order of the disciplinary committee of a State Bar Council, of the High Court.'

The above section shows that an order of a disciplinary committee regarding costs shall be executable as if it were an order of the High Court. In other words, the order of the disciplinary committee regarding costs, by this statutory fiction, acquires the vigour of an order passed by the High Court. The same procedure as would be applicable for executing the orders of the High Court will, therefore, be applicable to the execution of the orders of the disciplinary committee of the Bar Council in respect of costs awarded by it.

5. Now, the Rajasthan High Court Rules lay down the procedure to be followed for original proceedings instituted in the High Court. After indicating the procedure in respect of suits instituted in the High Court it is laid down in Rule 267 thereof that the rules contained in this Chapter shall with such modifications and adaptations, as may be necessary also apply to other original proceedings instituted in this Court. These are obviously proceedings other than suits but they should nevertheless be original proceedings instituted in the court, therefore the rule will not cover proceedings in execution. The petitioner invited attention to Rule 269 which lavs down that the Court may in any suit or proceeding under this Chapter give such directions in matters of practice and procedure as it shall consider just and expedient. This rule again would only embrace such original Proceedings and suits as are instituted in accordance with Chapter XV. This Chapter to my mind will not be applicable to execution proceedings. The Rajasthan High Court Rules do not make provision for execution proceedings as such.

6. Section 38, Civil Procedure Code however, lays down by which court decrees may be executed. It provides that a decree may be executed either by the court which, passed it or by the court to which it is sent for execution. Section 39 lays down how the court passing the decree may, on the application of the decree-holder, send it for execution to another court. The Question arises here whether the order for costs passed by the Disciplinary Committee is an order passed by the High Court. Obviously it is not. Section 43 of the Advocates Act only lays down how an order for costs shall be executable and by fiction it is made executable as if it were an order of the High Court. Such an order however, is to be treated like an order passed by the court and to that order Section 38 Civil Procedure Code would apply. The petitioner submits that the Disciplinary Committee Of the Bar Council is not a court therefore, it would not be in a position to resort to Section 38. Civil Procedure Code. We are not concerned with the broader question whether the Disciplinary Committee of the Bar Council is a court or not, but so far as the limited question of executing its order for costs is concerned it has been placed at par with this Court and is for that limited purpose, at any rate, very much of a court. Consequently Section 38. Civil Procedure Code can be resorted to by the Disciplinary Committee of the Bar Council for the purposes of executing its order in respect of costs awarded by it. The petitioner has himself taken the position before the learned District Judge that the execution petition would lie in the High Court. The order of the learned District Judge is not before me and, therefore, it is not Possible to quash that order more so when the petitioner himself was to some extent responsible for having that order. Normally a decree is executed by a court, which passes it or by a court to which such decree is sent for execution. The High Court has not passed the order for costs and therefore, the execution petition cannot be made to this Court. It will be for the petitioner to apply for execution before the Disciplinary Committee of the Bar Council itself and then have the decree transferred to such a court as can execute the decree.

7. With the above observations, therefore, I uphold the Office objection and reject the execution petition.