KR BHAGWANT SINGH Vs. BHAO SINGH

JUDGEMENT

(1.) This is an application for revision directed against an order passed by the learned District Judge of Budaun in proceedings taken by the present applicant for amendment of a decree passed by him, which decree was subsequently appealed from and affirmed by this Court.

(2.) The applicant was the plaintiff in the suit originally instituted in the Court of the Subordinate Judge of Budaun. It was decreed ex parte. An application for an order to set aside the ex parte decree was dismissed by that Court; but on appeal to this Court it was successful. The suit was however remanded not to the Court of the Subordinate Judge, but to that of the District Judge for trial on the merits. It was eventually dismissed by the District Judge with costs. Included in the memo of costs appended to the-decree prepared by the District Judge were two sums taxed as costs properly incurred by the defendants : one was a sum of Rs. 735, paid to Babu Sheo Narain Jafa, senior vakil, and the other a sum of Rs. 299 paid to B. Prem Mohan Lal, junior vakil. It is conceded that these sums were not paid to the aforesaid vakils in cash and that a promissory note was executed by Mt. Pania, wife and " mukh-tar-i-am " of one of the defendants, in favour of both the vakils. The certificates filed by the vakils themselves showed that cash had not been paid, but that a promissory note had been executed in their favour in lieu of the unpaid part of their fees.

(3.) The defendants, on whose behalf the abovenamed vakils appeared, were in jail at the time the certificates were filed. The lower Court has mentioned in its judgment that the promissory note was executed with the permission of the then District Judge. The learned Counsel for the applicant has controverted this fact. and drawn our attention to an application, dated 8 March 1927, presented by B. Sheo Narain Jafa, in which he represented to the District Judge that his clients were in the jail, that those who looked after the case on their behalf had paid only Rs. 140 in respect of the fees due to the vakils who acted for them and that, if payment was not made, they would not file certificates and the defendants would, on the one hand, not be entitled to have the legal practitioners fees taxed, and would, on the other hand, be liable to pay on a suit being brought by the legal practitioners for recovery of their fees. B. Sheo Narain Jafa requested the District Judge by this application to send for the defendants, who as already stated were in jail, so that they might execute promissory notes in favour of the vakils, who would in that case file certificates and the fees thus paid would be taxed as costs recoverable from the opposite party. The only order which the learned District Judge noted on this application was "permitted." Beading this order in the context in which it occurs, we think that what the learned District Judge meant was that the defendants be allowed to come to the Court to settle matters with their vakils. We are not aware whether this was done but it is certain that no promissory note was executed by the defendants themselves and it was Mt. Pania who did so. A promissory note was filed with the certificates in which the vakils acknowledged receipt of a certain amount as fees by obtaining execution of the promissory note. The promissory note bears an order of the District Judge that the same be retained with the record. In these circumstances, it is not correct to say that the promissory note executed in favour of the two vakils, which constituted the payment referred to in their certificate was executed with the permission of the District Judge, though he was aware of the circumstances and the manner in which payment had been made, but even assuming that the District Judge expressly permitted this mode of payment, the legal aspect of the matter is not different. Rule 1, Clause 21, of the general rules applicable to the Subordinate Courts distinctly provides that in drawing up a decree or order no fee to any legal practitioner not appearing for the Grown or Government or the Court of Wards as a party shall be allowed on taxation between party and party or shall be included in any decree or order...unless the munsarim or, on application to the Judge, the Judge is satisfied that the fee was paid to such legal practitioner at or before the hearing of the suit...and unless at or before such time there shall have been delivered to the munsarim a certificate signed by the legal practitioner certifying the amount of the fee or fees actually paid to him for his own actual use and benefit by or on behalf of his client.