1. This appeal arises out of a suit for a declaration that the sale held in execution of an order was without juris diction and illegal and for other reliefs.
2. It appears that the plaintiff, who is the appellant before us, cited Rahman Ali (the respondent) as a witness in another suit, and the Court directed the plaintiff to pay him Rs. 15 as his expenses. Rahman Ali executed that order and in execution put up certain Immovable property of the plaintiff to sale and the property was purchased by the defendant No. 2.
3. The Courts below overruled the contention of the plaintiff that the sale of the Immovable property was illegal land the plaintiff Has appealed to this Court.
4. It is contended that under Order XVI, Rule 4, Civil Procedure Code, the Court, in default in payment may order the expenses of a witness to be levied by attachment and sale of only the moveable property of the party obtaining the summons.
5. The learned Subordinate Judge was of opinion that Order XVI, Rule 4 provides only a short and summary procedure for realization of the expenses of a witness summoned to appear before a Court, leaving the other provisions of the Code unaffected thereby. Reliance was placed by the learned Subordinate Judge as also by the learned Pleader for the respondent before us upon the provisions of Section 36 of the Code.
6. We do not think, however, that that section makes any order-capable of execution which was not so before. Air that it lays down is that the provisions of the Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to execution of orders, which, we think, means that the procedure prescribed for execution of decrees shall apply to execution if such orders as can be executed under the Code. There being a specific provision in that behalf contained in Order XVI, Rule 4, the amount ordered to be paid by the Court, we think ought to have been levied in that manner and that the Immovable property of the debtor could not have been put up to sale.
7. It is contended on behalf of the respondent that there is nothing to show that the initial expenses were deposited under Rule 2 by the plaintiff-appellant and that Rule 4, therefore, cannot apply, as it applies only to cases where the sum paid into Court is not sufficient to cover the expenses or the remuneration of the witness. But it was not suggested in either of the Courts below that the initial expenses were not deposited and neither of the Courts below was invited to go into the question; and we cannot presume that the initial expenses which Rule 2 lays down shall be paid, were not as a matter of fact paid.
8. We are, accordingly, of opinion that the order of the Court below should be set aside and the suit decreed. There shall be a declaration in favour of the plaintiff that the sale was illegal and did not affect the interest of the plaintiff.
9. Each party to bear his own costs throughout.
