JUDGMENT
Macpherson, J.
1. This application in revision is preferred against the order of the Subordinate Judge of Muzaffarpur enhancing the rate of remuneration of a commissioner, Babu Basanti Charan Sinha, from two thirds of Rs, 16 to Rs. 32 per day of six hours, without hearing the petitioners. The petitioners were the defendants in the partition suit brought by the opposite party No. 1. The opposite party No. 2 is the Pleader named. In this Court both the plaintiff and the Pleader are represented by the same Advocate, a fact which occasioned difficulties at the hearing since their interests are not the same. The order impugned is represented as absolutely the last straw in a most harassing litigation. The plaintiff who is entitled to a one-sixth share, brought his suit for partition so long ago as September 30, 1929. For most of the time it was on the file of Babu Harihar Oharan who has since retired. An inventory of the property, as pointed out by the plaintiff, was made before the case came, on for hearing. The order sheet both before and after hearing makes most painful reading and it is palpably incumbent on the District Judge of Muzaffarpur to look into the working of this Court.
2. The preliminary decree was passed by the 97th order in the order sheet on February 29, 1932 and on the same day a further order was passed calling upon the plaintiff to deposit Rs. 224 as commission fee for a commissioner for two weeks. This order shows what the Subordinate Judge contemplated. The suit had been for accounts as well as partition; but the learned Subordinate Judge had held that defendant No. 1 who was the karta, was liable only to the extent of the assets available for partition, referring to the decisions in Sita Ram v. Hanuman Prasad 100 Ind. Cas. 632 : A.I.R. 1927 Pat. 413 : 8 P.L.T. 145, and Jyotibati Chaudhurain v. Lachhmes war Prasad 126 Ind. Cas. 372 : A.I.R. 1930 Pat. 260 : Ind. Rul. (1930) pat. 612. He appointed a junior Pleader Babu Satdeo Narain as commission on remuneration of Rs. 16 per day. The Pleader conducted operations with monumental incompetence and waste of time which should be taken into account when payment is made to him. The Subordinate Courts at Muzaffarpur have always possessed an unenviable reputation in regard to commissions and it is hoped that the learned District Judge will bring matters into order in this respect and see that a reasonable and if possible, inclusive remuneration is fixed at the outset, that it is on the basis of the low present-day fees of legal practitioners and that a most careful scrutiny of and check upon their bills of fees is made. Slackness in this regard and in the selection of commissioners in respect of whom thorough competence should be the sole criterion, is a sure index that a judicial officer is of inferior caliber and should be brought to the administrative notice of this Court. It is quite clear, first, that this junior Pleader ought not to have been appointed at all, and secondly, that he would have been excessively remunerated at one-third of the fee fixed.
3. He apparently spent much time on counting mangoes though the plaintiff was initially responsible for this incredible state of affairs, the commissioner ought to have had enough backbone to refuse or to cut very short the time so spent and the proceedings went on until June 29, 1933, when, at the instance of the plaintiff the learned Subordinate Judge, a new officer, recorded an order appointing Babu Basanti Charan Sinha, a senior Advocate of the Court as commissioner with Babu Satdeo Narain as junior, the fee of Rs. 16 to be divided between them in the ratio of two to one. This order was apparently made with the consent of the parties. Clearly something had to be done; but the learned Subordinate Judge appears to have acted without proper circumspection. Two days later he recorded that the Senior commissioner had applied for special fees of Es. 32 per day and passed the following ill-considered order in the absence of the parties:
I think he deserves consideration and I allow him Rs. 32 per diem consisting of six hours. I fix the fee of the junior commissioner at Rs. 6 per diem for six hours. The junior commissioner will have practically not to do much, but only to help the senior commissioner.
4. It appears however that all the subsequent recording of evidence has been made by the junior commissioner though An the presence of the senior commissioner,
5. The plaintiff Was to pay the costs of the partition in the first place. It may be mentioned that the value of the estate is supposed to be three lakhs of rupees of which Rs. 70,000 was said to be in cash, a suggestion denied by the defence. Apart from the cash, practically everything apepais to be entered m the earlier inventory. A monthly allowance of Rs. 165 was directed to be paid to the plaintiff. The plaintiff paid in nothing towards the costs. Proceedings were taken for the appointment of a receiver and eventually defendant No. 1 was appointed by the High Court to be receiver and at once found himself involved in very great difficulties. On July 1 last, on which he passed the order now impugned fixing the fees of the commissioners, the learned Subordinate Judge further ordered:
The plaintiff is only getting maintenance from the receiver defendant No. 1 under the orders of the Court and the entire estate is in the hands of the receiver. So it will be proper to order the receiver defendant No. 1 to deposit Rs. 1,000 as commissioner’s fee in advance by July 15,1933. Unless the fee is deposited by the aforesaid date, the work of commission will be stopped and defendant No. 1 will be removed from the receivership,
6. Three days later, defendant No. 1 applied for the reduction of the fees paid to the commissioners and that the plaintiff should deposit them. The Subordinate Judge recorded that the petitioner was obstructing the work of the commissioner as receiver of the property and was taking advantage of his position as such and called to him to show cause within seven days why he should not be removed from the receivership on those grounds and for troubling the Court without any ground whatsoever. Defendant No. 1 was browbeaten into acquiescence. Apparently at the request of the commissioner there was a subsequent order upon him to make a further deposit of Rs. 2,000. This Court cannot but disapprove the methods adopted by the learned Subordinate Judge. His orders are of an Unnecessarily coercive character in language and substance. In; particular, his action in increasing the/fee of the senior commissioner was ill advised. The estate had been already apparently bled white by the fees and delays of the first commissioner under his predecessor’s laxity, and to increase behind their backs the fees agreed upon by the parties from Rs. 16 to Rs. 38 was oppressive.
7. Many adequate and expeditious commissioners would have gladly accepted a fee of Rs. 10 to Rs. 16. Again he does not appear to have considered, any more than his predecessor, the crucial question what accounting was necessary and what accounting is being done. Prima facie all that was necessary under the preliminary decree was to ascertain what funds existed on a certain date. Apparently the commissioner has been taking accounts from 1919 when defendant No. 1 became karta of the joint family. The plaintiff besides petitioning that the commissioner should be asked to count the mangoes in a gachi of which the fruit had been sold by defendant No. 1 for about Rs. 1,500, contested every item in the account books. The deposition of defendant No. 1 lasted about two hours and his cross-examination for 22 days. It is to be hoped that they were not days of six hours each. The receiver has been so badly put to it for money that there has been on several occasions a question of his arrest. In short, the whole procedure has been deplorable. The blame lies partly with the plaintiff but largely with the Subordinate Judges who made unsuitable appointments at fees excessive in the circumstances and failed to give any guidance to the persons appointed. In fact the Advocate who appeared for both members of the opposite party, was entirely unable to state what it is that the commissioners are doing, even after their joint appointment, on June 29. It is even stated that the second commissioner has been allowed time for two months more. Clearly the learned Subordinate Judge acted with material irregularity in the exercise of his jurisdiction in altering behind the backs of the parties fees to which they had agreed and which are oppressive, and in changing the orders as to initial payment of the costs of partition.
8. The petitioners have with reason sought the protection of this Court and it is incumbent upon the Court to protect them. The difficulty however is to discern how protection can be given. The orders of the presiding officers have so complicated matters that interference in the direction of the reduction of fees might even be harmful. The learned Advocate Mr. B.P. Singh for the petitioners urges that if the commission can be brought to a close within a week he will be prepared to face it. But in the absence of particulars from the Court below, it is to be feared that the parties are at the mercy of the order already passed by that Court. Nevertheless the Subordinate Judge must personally see to the amelioration of the position so far as possible: above all, the proceedings are to be expedited, particularly by the elimination of all irrelevancies and restraining the commissioners from prolonging the proceedings whether in their own interest or from defective guidance. The learned Subordinate Judge must inform himself of what the commissioners are doing and whether the Pleaders of the parties are turning the commission into an unchecked fee making institution. The learned Subordinate Judge must also see that the fees charged have been really earned before he passes any of them for payment. He should further consider whether the payment of the first commissioner should not be at the rate of Rs. 6 a day or less from the outset having regard to the work which he has done as compared with what was to be expected of a competent commissioner.
9. As between the plaintiff and the defendants, it is clear that the plaintiff is mainly responsible for the intolerable prolongation of the proceedings. He manoeuvred to escape paying in the costs of the partition of which five-sixths were thus payable both initially and finally by the petitioners and took unfair advantage of his success in this respect. The estate as a whole will pay not more than Rs. 16 per day for commissioner’s fee. The balance up to Rs. 22 per day, unless the Subordinate Judge is able to reduce it, as he should be able to do, will be payable by the plaintiff opposite party out of his own share and if any further costs than the sums already paid in have to be provided, the plaintiff will be called upon to pay. As the Court was largely to blame, costs cannot be given against the commissioner opposite party. The petitioners are entitled to their costs from the plaintiff-opposite party: Pleader’s fee: two gold mohures Let the order go down forthwith.