Penckridge, J.
1. This is an application on behalf of Ramesh Chunder Bose, an attorney of the Court, for an order under Chap. 38, Rule 59 of the Rules of Court, that the plaintiffs, Mt. Attormoni Dasi and Ashutosh Dhur, do pay him a sum of Rs. 23,755-3-0 being the balance of his taxed costs in this suit. The history of the suit, which is one for the administration of the estate of Pitambar Dhur, deceased, is as follows:
Pitambar Dhur, the testator, died on 21st October 1897, leaving him surviving his two sons, the defendants Bepin Behary Dhur and Kali Charan Dhur, and four grandsons, the sons of his predeceased eldest son Narayan Chandra Dhur, the husband of the plaintiff Mt. Attormani Dasi, viz. Nabin Chandra, Ashutosh, Purna and Shibnatb. Ashutosh is one of the plaintiffs, Nabin Chandra, a defendant. Purna Chandra and Shibnath are dead. The former is represented by the defendant Mt. Sushila Sundari Dassi, his wiclow, and the latter by the female plaintiff, his mother. Pitambar's widow, Mt Sarat Coomari Dassi, is also a defendant.
2. On 3rd December 1897 application was made for the probate of the testator's will. A caveat was entered and the matter set down as a contentious cause, being numbered 3 of 1898. In the initial stages of the testamentary suit the attorney for the plaintiff in this suit were the firm of Kally Nath Mitter and Sarvadbicary, but some time in 1901 there was a change from that firm to Romesh Chunder Basu, the applicant in this case. The testamentary suit was settled and a consent decree made therein on 30th May 1904, probate of the will being granted and an order made that costs of all parties do come out of the estate.
3. On 2nd December of the same year this suit for administration was instituted, the applicant again acting as attorney for the plaintiffs Ashutosh and Mt. Attormani.
4. It is unnecessary to set out in detail all the steps of this intricate litigation.
5. The preliminary decree was made on 23rd January 1906, and the final decree was made on 17th December 1912. Appeals were filed and further enquiries directed, and the final decree, as it now stands, was made on 8th May 1916. On 17th September 1921 the applicant's bill of costs was lodged in the Taxing Office, and on 26th June 1923 the bill was finally vouched, taxed and passed and an allocatur issued allowing Rupees 12,295-8-0 as between party and party, and Rs. 13,949-1-5-0 as between attorney and client. Both the plaintiffs oppose the present application, and maintain that the circumstances of the case are such that in the exercise of my discretion I should refuse to make the order asked for and refer the parties to a suit.
6. Now it is conceded that, with the exception of certain costs which the applicant has expressed his willingness to give up, I must either make the order for the payment of the sum mentioned or dismiss the application. It is not open to me, on this application, to entertain, far less to decide, questions such as set-off and damages. If these are to be agitated at all it must be in any ordinary suit.
7. With regard to limitation the position is this. Applications under Rule 59 are not subject to either to Article 84 or Article 181, Lim. Act : see Narendra Lal Khan v. Tarubala Dad A.I.R. 1921 Cal. 67 but the judgments both of Rankin, J., in that ease, and of Chaudhuri, J. in Lakhimani Dassi v. Diuijendra Nath Mukerjee [1918] 46 Cal. 249 indicate that in certain circumstances the Court, in the exercise of its discretion, should take into account the fact that if the attorney be referred to the remedy of a regular suit that suit must be dismissed as being time barred.
8. It appears to me, however that this is not an aspect of the matter with which I need concern myself since in my judgment it is clear that in a suit brought by the Attorney, Attormani and Ashutosh would not be in a position successfully to plead the provisions of the Limitation Act.
9. By Article 84 of that Act the date from which the three years' period of limitation provided by the article begins to run is the date of the termination of the suit or business. I am asked to hold that the final decree of 8th May 1916 is the termination of this suit within the meaning of the article. To do so would, I think, be potently absurd; in many proceedings of which administration suits are an example the so-called final decree is very far from being the termination of the suit. Moreover, Atal Chunder Ghose V. Lakshman Chunder Sen [1909] 36 Cal. 609 appears to me an authority for the proposition that the period of limitation in an attorney's suit; for taxed costs does not begin to run until at the earliest the issue of the allocatur.
10. It is also pointed out that a considerable time has elapsed between the making of the final decree and this application and it is suggested that this is a matter I should take into consideration. In my judgment I should not, in this case enquire whether the attorney was dilatory or expeditious at every stage. His claim for costs is a legal not an equitable claim and could only be defeated in a suit by lapse of time sufficient to bring it within the law of limitation.
11. Various other reasons are advanced why in this case the attorney should not be permitted to avail himself of the summary remedy provided by the rules, but should be referred to a suit.
12. The plaintiffs first submit that they are entitled to the trial of an issue whether or not at the time of the institution of the suit there was an oral agreement between the attorney and Attormani Dasi that he would not ask for any costs beyond those that the Court might order to be paid out of the estate of the testator. I am satisfied that there is nothing in the allegation. No affidavit is sworn by Attormani Dasi and her brother Narendra Nath Sen puts it forward as based on information the source of which he does not specify. There is no corroboration for it whatsoever, and it is denied on oath by the applicant.
13. Next it is said that the Taxing Officer has erred in that he has not followed the scheme of taxation provided by an award of Mr. B.C. Chattrerjee accepted by all the parties. The award was made in the following circumstances.
14. On 31st July 1917 Chaudhuri, J. referred it to the Taxing Officer to report what sum was payable to the plaintiff's attorney as counsel's fees and the party subsequently agreed to refer the matter to the arbitration of Mr. Chatterjee who made his award on 30th January 1920. At first sight it certainly seems that the arbitrator's award goes considerably beyond the scope of the reference; for not only does it deal with the proportions in which the plaintiffs are to be liable inter se and the amount payable out of Pitambar's estate, but it gives direction as to the general costs of the suit quite apart from counsel's fees. This however, is not important as all the parties, including the attorney, signified their consent to the award, and the attorney expresses his willingness to be bound by it. The answer to this contention is I think given by the Advocate-General, viz. that it is now too late to call the Taxing Officer's decision in question. The taxation has become final and the only question before me is the method whereby the attorney is to enforce his claim not to the quantum of the claim tself.
15. I think he is also right when he contends that, in so far as the plaintiffs base their argument on the various directions that have been given for costs out of the estate, they display some misapprehension as to the meaning of that terra. An attorney looks for remuneration to the client who has retained him, and when in administration matters an order is made for costs out of the estate it seems that the client, may reimburse himself from the estate and it no way limits the rights of the attorney to get his taxed costs direct from the client.
16. The final objection is one of more substance. It is said that the parties should be referred to a suit because it would thereby be possible for the plaintiffs to set off against the attorney's bill of costs, a time-barred claim for unliquidated damages occasioned by the attorney's negligence. The negligence relied on concerns the proceedings before the Assistant Referee pursuant to an order made on appeal on 3rd December 1914. On 18th August 1915 the Assistant Referee gave the following directions:
All parties should lodge with the Taxing Office their bill of costs, i.e., of the Testamentary Suit No. 3 of 1898, before the Court closes for the long vacation. If they do not produce their allocaturs before I close the reference I shall treat the payments made to the attorneys by Mr. Belchambers as personal drawings by the parties, and they would not get the benefit of the provisions in the appeal Court decree as to equal contribution to the costs.
17. The plaintiffs allege that by failing to get his bills taxed or produce his allocatur, the attorney has deprived them of the benefit of the provisions-as to costs in the testamentary suit with the result that their shares have been debited with large sums by way of personal drawings and interest, and a legacy of Rs. 9,000 given to Narain Chandra's branch of the family has been swallowed up is this fashion. The attorney's answer is that he did all he could in his clients' interest, but that he was obstructed at every turn, The brothers, he says, kept the cause papers and briefs in their own possession and to this fact and the brothers' quarrels the delays were due.
18. Now, I assume as against the attorneys (1) that in a suit it would be possible for the plaintiffs to plead a time-barred claim for unliquidated damages by way of equitable set-off; and (2) that the position is unaffected by the fact that all parties accepted Mr. Chatfcerjee's award in 1920 though on both points I entertain some doubts.
19. Nevertheless after giving the matter my consideration I have come to the conclusion that the circumstances would not justify me in compelling the applicant to resort to the remedy of a suit entailing much expense, delay and inconvenience.
20. As the Advocate. General has pointed out, the attorney would have had no possible motive for suppressing the allocaturs or for not getting his own costs taxed. Indeed it was to his interest to expedite matters.
21. Again there is no evidence to show that any of the parties called upon the attorney to bestir himself. No doubt Attormani Dasi is a pardanashin lady for whom allowance must be made, but her brother has been looking after her interest and both he and Ashutosh must have fully appreciated the position.
22. On the materials before me, I cannot find that these charges were ever made prior to the affirmation of an, affidavit by Nabin on 12th March 1924 nine years after the alleged default, and when its effects must long have been apparent. It is further significant that even today these charges do not appear in the affidavit used by Ashutosh in opposition. No affidavit is sworn by Attormani Dasi, and in Narendra's affidavit the charge is one of wilful misfeasance, a reckless and absurd suggestion doing little credit to the deponent who swore and in my opinion still less to the attorney who drafted the affidavit.
23. I, therefore, make the order asked for save and except that the sum mentioned in the summons will be reduced by two-thirds of the attorney's profit, costs as between attorney and client, which the attorney has expressed himself willing 'to give up. This I am told is a sum of Rs. 3,296-2-8, but if this is not agreed to the matter must be mentioned to me again and referred. The attorney is entitled to his costs of this application.
[On appeal to the Bench.]
Rankin, C.J.
24. In this case there was an application in Chambers for a summary order under Rule 59, Chap. 38 of the Original Side Rules by an attorney against his clients for payment of the amounts due to him under certain allocaturs for taxed costs. The practice in this Court is that when an order is made for costs as between party and party at the hearing of a suit or an appeal, the taxation proceeds not only between party and party but also between the attorney and his client as regards attorney and client costs. The costs with which we are concerned are the costs of an administration suit which came to an end in the first instance, on 17th December 1912, and an appeal, on 3rd December 1914, and the taxation with which we are concerned has been held under these two decrees. The suit was a suit for the administration of the, estate of one Pitambar who died in 1897. The conduct, both of the attorney and his clients, has been most extraordinary and the bills of costs now in question appears to have been lodged with the Taxing Officer in the year 1921. Ultimately the allocaturs were issued on. 26th June 1928 and the present application was taken out shortly thereafter.
25. The clients contend that the sums claimed are not due to the attorney and the defences which they set up to the claim are as follows: First of all, they contend that the attorney was party to an agreement that a certain award made by Mr B.C. Chatterji should take effect in respect of costs, and they say that by this award a large part of the costs for which claim is now made is subject to an agreement by the attorney that he should look only to the estate of the deceased and should not look to either of his clients personally. With reference to this matter there is a great deal to consider. It is a question whether the award was a good award at all. Ultimately the award was incorporated in the report of the Registrar, which was presented to the Court and the Court refused to accept it and there can be no doubt at all that the claim on the part of the clients that this award now binds the attorney, gives rise to a good many matters for investigation. The second defence which is taken particularly by the lady Attormani is that the attorney was engaged throughout on the understanding that he would not look to her personally for his costs but would take his chance in getting his costs out of the estate in administration. This certainly is an exceptional contention and requires very strong proof before it can be accepted-particularly in the light of the subsequent events. The third defence put forward is that there is a heavy claim for damages for the attorney's negligence arising out of the fact that in the administration suit the attorney did not produce and get his bills taxed so as to enable his clients to get the benefit of an order which put the costs of all the parties upon Pitamber'a estate. It does seem - though it is by no means clear - but it does seem to me to be the fact that certain bills of costs not being produced in time the Assistant Referee refused to permit them to be taken into account. On the other hand there is a mass of material upon the record tending to show that the default in lodging these bills of costs for taxation was not so much the fault of the, attorney as the fault of his very cantankerous and extraordinary clients. But, at the same time, it cannot be said that the attorney has been able through letters written from time to time to establish this position. The clients further claim to set off certain sum of costs and dispute the credit that had been given to them for certain small amounts that had been paid on account and they further raise the question that the order sought against them is barred by limitation.
26. I have been at considerable pains to endeavour to see whether Rule 59, Chap. 38 of the Original Side Rules can fairly and defeasibly be applied to a case of this degree of complication. It appears to me that it cannot, and, though I have reached this result with great regret, I cannot say that I have any real doubt upon the matter. No doubt it is open to us to go through the mass of the record in this administration suit and the testamentary suit that was connected with it and to make up our minds, from what was said by the learned Judges from time to time and from the affidavits filed from time to time by the parties, which of these parties is likely to be in the right as regards, their several contentions; but it does not seem to me that that would be a proper or reasonable way of dealing with such a case as this. In my judgment, there are features in this case which can only be disentangled by oral evidence and, though I have little doubt that there is 3mall merit in the attempt on the part of the clients to pay nothing to their attorney who is out of pocket by a large sum with respect to counsel's fees and other matters, I feel entirely unable to give relief to the attorney upon a mere summons in Chambers such as is now before us. With the very greatest respect to the learned Judge who has made the order against the clients, I think that that order cannot stand. In my judgment, the appeals must be allowed and She order of the learned Judge must be discharged, No order as to costs.
C.C. Ghose, J.
27. In this ease I have the misfortune to differ from my learned brothers; it is therefore incumbent upon me to set out at length the reasons which have compelled me to differ.
28. These two appeals have arisen out of an application made by the respondent Mr. Ramesh Chunder Bose who is an attorney of this Court for an order under Chap. 38, Rule 59, of the rules of this Court on the original side (corresponding to Rule 35 of the same chapter in the present edition of the rules) that the plaintiffs Mt. Attormani Dasi and Ashutosh Dhur do pay to him the sum of Rs. 23,755-3-0 being the balance of his taxed costs. The application came on for hearing before Panokridge, J., and he made an offer in minner following:
It is order that the said plaintiffs Mt. Attormani Dasi and Ashutosb Dhur do pay to the said Babu Ramesh Chunder Bose the sum of rupees twenty-three thousand seven hundred and fifty-five and annas three being the balance of the plaintiffs' taxed costs in this suit less the sum of rupees three thousand two hundred and ninety-six annas two and pies eight being the two-thirds of the in-pocket attorney and client costs and do also pay him his costs of and incidental to this application including the fee to counsel to be taxed by the Taxing Officer of this Court.
29. It may be noted in passing that though the attorney took out summons of this application as far back as 30th August 1928 the matter was not disposed of till 5th August 1929.
30. In Appeal No. 101 the appellant is Ashutosh Dhur and in Appeal No. 102 the appellant is Mt. Attormani Dasi; but the points which arise in the two appeals are the same and consequently the two appeals have been heard together by us.
31. The subject-matter of these two appeals is somewhat complicated and it may be desirable to set out the facts at some length.
32. One Pitambar Dhur died on 21st October 1897 leaving him surviving his two sons Bipin Behari Dhur and Kali Churn Dhur and four grandsons named Nobin Chunder Dhur, Ashutosh Dhur, Purna Chunder Dhur and Sib Chunder Dhur, being the sons of his predeceased eldest son Narayan Chunder Dhur, and Mt. Attormani Dasi, the widow of Narayan. Purna died leaving a widow named Sushila. Shib Chunder died unmarried leaving him surviving his mother Mt. Attormani Dasi as his heiress.
33. Pitambar Dhur died leaving a will, application for probate of which was made by the executor named therein, Bipin Behari Dhur, on 3rd December 1897. A caveat was lodged, with the result that the matter of the application for probate was set down to be heard as a contentious cause and was numbered : as Suit No. 3 of 1898, Mt. Attormani appeared in those proceedings as guardian of her then infant sons Ashutosh and Shib Chunder and opposed the application and her attorneys were i Messrs. Kali Nath Mitter and Sarvadhikari. Mr. Belchambers, the then Registrar on the original side, was appointed receiver of the estate of Pitambar Dhur. Some time in 190L there was a change of attorney from Messrs. Kali Nath Mitter and Sarvadhikavi to Mr. Ramesh Chunder Bose. In October 1901, the parties came to a certain agreement. In 1904 there was a decree by consent in the said probate suit; probate of the will was granted to the executor and an order was made that the costs of all parties should come out of the estate, While this litigation was going on, it appears that Mr. Belchambers as receiver made certain payments from time to time to the attorneys engaged in the case.
34. Shortly after the termination of that litigation, an administration suit was started by the plaintiffs Mt. Attormani Dasi and Ashutosh Dhur in this Court being Suit No. 875 of 1904 at the instance of Nobin Chunder Dhur and these persons retained Mr. Ramesh Chunder Bose as their attorney in the said suit. Mr. Bose's costs which are the subject-matter of the present application are in connexion with the said administration suit and with various appeals arising therefrom. In the administration suit which was instituted at the instance of Nobin as found by this Court, a preliminary decree was made on 23rd January 1906, directing a reference to the Assistant Referee. There was an appeal against this preliminary decree; but the appeal was dismissed and the decree was confirmed by the Court of appeal. This was on 14th January 1907. The Assistant Referee made his report on 31st July 1909. Exceptions were taken thereto on every conceivable point by Nobin Chunder Dhur, among others, and the matter came on for hearing before Woodroffe J. The exceptions were discharged and the report of the Assistant Referee was confirmed on 17th December 1912 and a final decree was made.
35. It was directed by the final decree that the general costs of all parties in the said administration suit should be paid out of the estate, one-third from the share of each branch and that the general costs of all parties in the reference before the Assistant Referee should be paid out of the estate; one-third from the share of each branch except the coats occasioned by reason of a document which was marked Ex. D being put forward and in respect thereof it was directed that the plaintiffs should pay such costs. Now, against this final decree two appeals were lodged. On 3rd December 1914 the Court of appeal slightly varied the decree of 17th December 1912. It was ordered that the costs of the administration suit should be paid out of the estate except that the plaintiffs and Nobin Chundar Dhur should pay the costs occasioned by putting forward Ex. D. It was also directed that the costs of the testamentary proceedings covered by Clause 3 of a certain agreement arrived at between the parties, being the agreement of 1st October 1900, should come out of the estate-one-third from the share of each branch. Certain directions were also given by the Court of appeal for further enquiries before the Assistant Referee. These enquiries came on before the Assistant Referee, and by his order dated 18th August 1915 he directed the parties to lodge with the Taxing Officer before the ensuing long vacation commenced their bills of costs of the testamentary suit and produce allocaturs before the reference before him was closed and, that, in default the payments made by Mr. Belchambers, as receiver to the attorneys concerned, would be treated as the personal drawings of the parties. It appears that this order was not carried out by any of the parties to the said suit. Be that as it may, the report of the Assistant Referee on the said further reference came on for confirmation before this Court on 8th May 1916 when the same was confirmed and a final decree was passed in the said administration suit.
36. In the various proceedings referred to above Mr. Ramesh Chunder Bose acted as attorney of the plaintiffs, but it does not appear that he was paid his costs from time to time or indeed at any time by hisclients - the plaintiffs Mt. Attormani Dasi and Ashucsh Dbur, except certain small sums. In July 1917 he was faced with this position : that there was due by him to various counsel employed by him on behalf of his clients in the said various proceedings a large sum of money amounting to about Rs. 40,000. Demands for payment had been made on his clients, but it appears that the attorney was pat off on the ground of want of funds and on the ground that their properties were in the hands of the receivar of this Court. In these circumstances, Mt. Attormani Dasi made an application in the administration suit (No. 875 of 1904) some time in July 1917 before Chaudhuri, J., for an order that the receiver appointed in the said suit of the properties bequeathed to the heirs of Narayan Chunder Dhur deceased should raise and pay to Mr. Romesh Chunder Bose a sum of Rs. 40,000 by mortgage or sale of one undivided half-share of the said properties in his charge towards payment in part of Mr. Ramesh Chander Bose bill of costs. Various other matters were covered by this application, but for present purposes it is unnecessary to refer to them.
37. Mr. Ramesh Chunder Bose made an affidavit in connexion with this application and he stated inter alia as follows:
That during the prosecution of this suit and the appeals, the said Ashutosh Dhur used to take from my office the cause papers and the briefs of counsel - most of them have not been returned to ma but were kept by the said Ashutosh Dhur and he has not made them over to me. That about two yews ago the said Ashutosh Dhur and Nabin Chunder Dhur quarrelled among themselves and Ashutosh Dhur alleges that the cause papers and briefs of counsel are with No bin Chunder Dhur and the latter charges that when Aahutosh Dhur removed from his house he had taken them over with him and they were and are still with the said Ashutosh Dbur. That there is a large sum of money about Rs. 37,600 due to counsel for their fees and unless these are paid to counsel I cannot under the rules of Court lodge my bill of costs into the Taxing Office for taxation. Besides owing to non-production by Ashutosh Dhur of the cause papers and the briefs of various counsel who appeared on my clients' behalf at the various stages in this suit and in appeal I am unable to get my bill checked by the Taxing Office of this Hon'ble Court at the time of taxation of my bill of costs. That under the rules of this Hon'ble Court all bills of costs should be lodged for taxation along with the cause pipers and briefs of counsel and upon payment to counsel of all their dues thereon. That I have got my bill of costs in this suit prepared from papers filed in Court and upon the cause papers and other papers in connexion with this suit, but I am unable to pay counsel their fees as the plaintiff did not pay them nor have they got their share of the properties, they being in the hands of a receiver appointed in this suit. That my bill of costs has been ready and it shows that the total amount of my bill of costs in this suit is about Rs. 83,368 of which the sum of Rs. 37,600 represents fees due to counsel.
38. Ashutosh Dhur also made an affidavit and he opposed Attormani's application. Ashutosh stated among others as follows:
I state that whatever papers and briefs were taken it was done by the defendant Nabin. Chunder Dhur who used to do everything in the case, and if any papers and briefs have not been returned the said Nabin Chunder Dhur is responsible for the same.
39. At this time it is quite clear from the materials before us that Ashutosh and Nabin had quarrelled among themselves and Ashutosh charged that the application of Mt. Attormani Dasi had really been inspired by Nabin Chunder Dhur in order that he (Ashutosh) might be made to pay the costs to Mr. Ramesh Chunder Bose. Ashutosh's contention was that the administration suit itself was Nabia Chunder's suit, although he figured in the category of defendants and that Nabin ought to pay Mr. Bose's costs.
40. Chaudhuri, J., made an order on 31st July 1917 on this application and it was as follows:
And it is further ordered that it be and it is hereby referred to the Taxing Officer of this Court to enquire and report as to the amount of counsel's fees due to Babu Ramash Chunder Bose, attorney for the plaintiffs in this suit. And it is further ordered that the said enquiry be held in the presence of the said Babu Ramesh Chunder Bose or his agent, and also in the presence of the said plaintiff Ashutosh Dhur or his attorney.
41. Ashutosh preferred an appeal but the appeal was dismissed; and Chaudhuri, J.'s order was confirmed.
42. As I understand Chaudhuri, J.'s order and the order of the Court of appeal confirming the same, it was evidently intended at the time that after the amount of fees due to counsel had been ascertained provision for payment thereof would be subsequently made by the Court.
43. It appears that the matter went to Mr. Hechle, the then Taxing Officer, and the enquiry was proceeded with for some time, and during the course of the enquiry it was ascertained what fees were payable to counsel and to which counsel. The enquiry was not however concluded before Mr. Hechle as the parties agreed among themselves that Mr. B. Order Chatterji, a member of the Bar, F should hold a sort of arbitration and in that manner finish the enquiry which was being held before Mr. Hechle. Mr. Chatterji made an award or report on 30bh January 1920 which is printed at pp. 11 to 15 of the paper book in. Appeal No. 101 of 1929. The fees due to eight counsel had to be ascertained and this was done by Mr. Chatterji on the materials which had already been placed before Mr. Hechle. He then proceeded to indicate how much of the fees due to counsel was payable out of what he called the 'estate,' how much was payable by Mt. Attormani Dasi and how much was payable by Ashutosh Dhur. The award or report of Mr. Chatterji was agreed to in writing by Ramesh Chunder Bose, by Mt. Attormani Dasi, and by Ashutosh Dhur. The Taxing Officer incorporated Mr. Chatterji's award or report in his report to the Court which was dated 12th March 1920.
44. On 16th March 1920 Ashutosh Dhur gave notice of an application for 26th March 1920 before Rankin J., as he then was, for an order that the report of the Taxing Officer dated 12th March 1920 should be confirmed and that the receiver appointed in the said Suit No. 875 of 1904 of the estate of the heir of Narayan Chunder Dhur be directed to pay Mr. Ramesh Chunder Bose the sum of Rs. 14,501 out of the funds in his hands to the extent the same was available and the balance by raising the same on mortgage of properties of sufficient value belonging to the estate of the heirs of Narayan Chunder Dhur deceased to enable Ramesh Chunder Bose to tax his bill of costs which were payable out of the estate of Pitambar Dhur deceased and debit one-third of the amount of taxed bills of Mr. Ramesh Chunder Bose against the amount to be advanced to him as aforesaid and realize one-third of the amount of the taxed bill from Kali Churn Dhur and one-third from Bipin Bihari Dhur and that after such realization the accounts between the heir of Narayan Chunder Dhur, as regards their liability for payment of costs be finally adjusted. In passing it may be noted that this was in substance the same application which Attormani had made before Chaudhuri, J., and which Ashutosh had strenuously opposed at that time. Ashutosh's idea was that the attorney should be paid off first, and then the said receiver should be placed in a position to realize a portion of the said costs from Bipin and Kali and thus to recoup Narayan's estate to a certain extent. Ashutosh Dhur in his petition to this Court, stated, among others, as follows:
That the said estate being in the hands of the Official Receiver, our petitioner and his mother were unable to pay a very large amount of costs payble to their attorney Babu Bamesh Chunder Bose so as to enable him to tax his bill and recover the same in the manner hereinbefore stated. That in order to get over this difficulty your petitioner's mother took out a Registrar's summons dated 18th July 1917 praying for an order that Mr. Jacob, the then receiver of the said estate, should raise and pay to the said Babu Bamesh Chunder Bose the sum of Rs. 40,000 by mortagge or sale of undivided half-share of the properties bequeathed to the heirs of Narayaa Chunder Dhur. That your petitioner filed an affidavit in opposition to the said application affirmed on 23rd July 1917 setting out that Nabin Chunder Dhur undertook to pay. the oosts of the action, and further that the costs were payable out of the estate of Pitambar Dhur deceased in the manner hereinbefore stated, and raising various other objection a to the same. That upon the said application it was inter alia ordered that it should be and was thereby referred to the Taxing Officer of this Honb'le Court to enquire and report as to the amount of counsel's fees due to Babu Bamesh Chunder Bose and it was further ordered that the said enquiry should be held in the presence of the said Ramesh Chunder Bose and your petitioner. That during the pendenoy of the said enquiry the defendant Bipin Bihari Dhur, having taxed some of his bills, applied for execution thereof against your petitioner, his mother and the defendant Nabin Chunder Dhur, and accordingly a notice was issued by this Hon'ble Court and dated 4th February 1919 on your petitioner, hia mother and the defendant Nabin Chunder Dhur to a how cause why the decree and orders for costs, which had been taxed as aforesaid, should not be executed. That your petitioner filed an affidavit affirmed on 31st March 1919 for the purpose of showing cause wherein your petitioner, after setting out the facts of the case pointed out that the estate of Narayan Chunder Dhur being in the hands of the Official Receiver counsel's fees payable to Babu Bameah Chunder Bose could not be paid to enable him to tax hits bills, and further that on such taxation not only the decrees and orders for costs including those under execution would be satisfied, but a large amount would be due to the estate belonging to the heirs of Narayan Chundar Dhur deceased.
45. Notice of this application was given to Mt. Attormani Dasi, Mr. Ramesh Chunder Bose, Nabin Chunder Dhur and his attorney Mr. H.C. Banerjee, Mt. Sushila Sundari Dasi and her attorneys Butter & Co., and to Mr. Khagendra Nath De who was the attorney of Nobin Chunder Dhur for some time, but no notice was given to the other parties interested in the estate of Pitambar Dhur.
46. Rankin, J. by his order dated 26th 1 July 1920 refused to confirm the Taxing Officer's report and in the course of his judgment observed as follows:
In the course of this litigation there has been a testamentary suit and in the administration suit certain costs incurred in the testamentary suit have been dealt with; further complication arises owing to the fact that the costs were not taxed at the time and certain orders were made which fail to take effect regarding costs. It is evident that more than one of the parties are in this difficulty, that counsel's fees have amounted to a considerable sum and the solicitors are not desirous of paying such a large sum before carrying in the bills for taxation of those costs allowed out of Pitambar's estate. To that extent I am minded to help the parties on a proper application being made in the presence of all the parties. If such an application is made for leave to have those costs taxed first, and payment of counsel's fees vouched afterwards, I may be able to make an order giving the receiver liberty to pay counsel's fees, but will direct that the allocaturs are not to issue till the vouchers are produced before the Registrar that counsel have been paid. As regards any other costs payable out of Narain's share in that estate I cannot hold out any hopes that I will do more than make provision when the deoree in the partition suit' (relating to the estate of Narain Chunder Dhur deceased) comes to be made : (i) giving the commissioner of partition liberty to set-off costs where there are cross-claim; (ii) giving him leave to sell or raise money upon the particular share of each person to pay the attorneys.
47. It should be stated here that Nabin, who had a passion for litigation, had in 1917 started a suit for partition of the properties belonging to Narain's heirs (Suit No. 563 of 1917). That suit came on for hearing before Rankin, J., on 2nd August 1920, when he made the usual partition decree and appointed Mr. Hechle, the then Registrar, commissioner of partition and receiver and discharged the Official Receiver who had been receiver of the said properties under an order which had been made in Suit No. 875 of 1904.
48. The position thereafter was that Attormani and Ashutosh would not pay Mr. Ramesh Chunder Bose any money and Mr. Ramesh Chunder Bose was unable to get his bill taxed as counsel employed by him had not been paid their fees. The attorney had employed the counsel concerned under the authority given to him by the plaintiffs in the retainer filed in Court, and he was bound to pay counsel, and the client would be bound to pay the fees paid to counsel on taxation. It is only when the client has instructed the attorney not to brief a particular counsel that the client would be under no obligation to pay fees paid to that particular counsel, should he have been employed by the attorney : see Be Harrison [1908]1 K. B. 282. In these circumstances he made an application to this Court some time in March 1924 for an order on notice to the parties and to the receiver appointed in Suit No. 563 of 1917 that the receiver of the estate of the heirs of Narayan Chunder Dhur deceased should raise and pay to Mr. Ramesh Chunder Bose a sum of Rs. 15,912 by mortgage or sale of one undivided half-share of the properties bequeathed to the heirs of Narayan Chunder Dhur towards payment in part of the plaintiff's bill of costs and that Ashutosh Dhur be ordered to produce cause papers and briefs of counsel before the Taxing Officer in order to enable Mr. Ramesh Chunder Bose to vouch his bill of costs. By this time Mr. Bose had lodged his bill with the Taxing Officer and it had been taxed in the sense that the officer had decided what he would allow.
49. Ashutosh opposed the application of Mr. Bose. The application came on before me sitting on the original side and it appeared manifest from the affidavits used : (see R.C. Bose's affidavit of 19th March 1924 and Ashutosh's affidavit of 31st March 1924), that Mr. Bose's complaint that the briefs and cause papers had been taken away from hi3 office was literally true. I was further of opinion that the order prayed for was such as Rankin, J., had indicated in the concluding sentence of his judgment quoted above as being one which could be made. An order was made by me on the original side in April 1924 in terms prayed for by Mr. Ramesh Chunder Bose; but this order was however set aside by the Court of appeal by its judgment dated 25th March 1925. The Court of appeal (Sanderson, C.J., and Rankin, J.) pointed out that the attorney had no cause of action against his clients for disbursements, such as counsel's fees, before he had actually paid them and that no case had been made out by the attorney for asking that the share of his clients should at that stage be mortgaged in, order to put him in funds to pay his counsel's fees.
50. It may not be out of place here to quote the following observations from the judgment of the Court of appeal which was delivered by Rankia, J.:
The position is, as I understand, that the bill of costs, which is referred to by the attorney in his affidavit has been lodged. It has been lodged without these vouchers from counsel. The bill itself has been taxed in the sense that the officer has decided what ha will allow. The amount to be allowed for counsel's fees has also been decided and a certificate has been given. It appears, therefore, that this attorney has been allowed very great indulgence indeed. He has been allowed to bring in his bill without the vouchers and practically to have a complete taxation without the vouchers. I make no observation as so that, except that he has had exceptional indulgence. The bill itself appears to be a bill for a very much larger sum than Rs. 15,000; taking the bill as a whole, it appears to be more than Rs. 40,000. We are now asked to say whether it is right in these circumstances that the receiver should be directed to charge the clients' estate itself merely to raise a mortgage for the purpose of putting the solicitor in funds to pay his counsel's fees at the last moment when the taxation is already complete. It has to be observed that under our rule3 it is possible for an attorney when he obtains his allocates to get a summary remedy against his client under Rule 67, Chap. 38, In my judgment, there are several substantial reasons why the order asked for by the attorney should not be granted. If this order be made in this case it appears to me that it will be very difficult to refuse applications of this character which will constantly be made. It seems to me that it is in effect getting rid of the salutary rule of law which was laid down in Holmes v. Penney [1856] 3 K. & J. 90. I think, too, that the principle that an attorney's client is entitled as a special protection to have disbursements made before the bill is lodged would be seriously imperilled. It seems wrong in any case to raise money for part of the bill of costs; piceameal charges on an estate are to be avoided. There is another objection. When this bill has been passed the clients will have an opportunity, if they desire, of raising certain claims and objections which they have indicated. I do not say that by way of encouraging them to do so, but it is quite possible that that will be done.
51. I will not presume to say a single word in criticism of the judgment of the Court of appeal; but it does seem to me that Rankin, J.'s attention was not drawn to his own judgment dated 26th July 1920, referred to above.
52. It appears that some time previously namely in March 1924, Nabin Chunder Dhur had made an application to this Court on the original side in Suit No. 563 of 1917 for an order that Mr. Ramesh Chunder Bose might be directed to make over to Mr. Eemfry the receiver and commissioner of partition of the estate of Narain Chunder Dhur appointed in the said Suit No. 563 of 1917, the allocaters of costs of the said Testamentary Suit No. 3 of 1898 and his taxed bills of costs and to furnish a full and complete account with sufficient details of all money received by him from time to time on account of the costs of the said testamentary suit. Mr. Rameah Chunder Bose filed an affidavit on 24th March 1924 in which he stated that the said Nabin Chunder Dhur and Ashutosh Dhur used to look after the litigation from the very start and that from time to time they used to take away from his office cause papers and briefs of counsel in the testamentary and other proceedings, which papers were essentially necessary for the preparation of the bills of costs. This was a repetition of what he had already stated in 1917 and which is referred to in a previous portion of this judgment. He also stated that he had in his possession one allocator and four taxed bills and that as regards the other allocators or taxed bills they were made over to Mr. Belchambers and were no longer with him. Ashutosh made an affidavit, but there is no denial therein of what had been stated by Mr. Bose. Mr. Bose's explanation was fully accepted and Nabin's application was dismissed by ma on the original side and two appeals against the last-mentioned order were also dismissed by Sanderson, C.J., and Bankin, J. This was on 19th March 1925. The result was that no further question about allocators and taxed bills in connexion with Suit No. 3 of 1898 could thereafter arise.
53. Counsel employed by Mr. Ramash Chunder Bose having been subsequently paid by him out of his own funds and the necessary vouchers being produced before the Taxing Officer, the taxation of his bill of costs, which was lodged in the Taxing Office on 27th September 1921, was completed on 26th June 1928 and an allocatur was issued allowing Rs. 12,295-8-0 as between party and party and Rs. 13,949-15-0 as between attorney and client. Mr. Bose is now seeking to obtain an order for payment by the plaintiffs and they are strenuously resisting any such order.
54. I may mention in this connexion that the attorney's bill was in the first instance finally passed by the Assistant Taxing Officer on 2nd September 1927. The plaintiffs however asked for review of taxation. The decision of the Taxing Officer dated 15th September 1927 was against the plaintiffs. They then applied to the Court for an order that the taxation should be reopened and that the bill should be retaxed. Pearson, J. before whom the matter came on for hearing was not satisfied that it was necessary to reopen the taxation altogether but he directed that the Taxing Officer should only reconsider items 1 to 5 mentioned in the plaintiffs' exceptions to taxation. It may be noted in passing that the plaintiffs queried the entire bill of the attorney, and that as many as 371 items in the bill were taken exception to.
55. Mr. S.C. Boy and Mr. P.N. Chatterjee for the plaintiffs, Attormani Dasi and Ashutosh Dhur have raised before us various contentions, the principal among them being the following : (1) that the award of Mr. B.C. Chatterji is binding on the attorney, and that it is quite clear that under the award the attorney is to get certain costs on account of counsels' fees out of the estate by which expression is meant the estate of Pitambar Dhur deceased and that as regards the balance of the costs payable on account of counsel's fees he is to get one-third from Ashutosh Dhur and two-thirds from Mt. Attormani Dasi; and further, as regards the attorney's in-pocket costs, he is to get one-third from Mt. Attormani Dasi and give up the balance as against Ashutosh Dhur; (2) that Attormani Dasi and Ashutosh Dhur daim to set off certain sums of money as either having been paid to the attorney or having been lost to them on account of the negligence of the attorney. It is said that the attorney failed to carry out the order of the Assistant Refaree by which he was directed to lodge with the Taxing Officer the bills of costs in the testamentary suit before the commencement of the long vacation of 1915, and that owing to the attorney's default in carrying out the said order the result was that the payments made by Mr. Belchambers to the attornys were treated as the personal drawings of the members of Narayan's branch of the family; in other words, the latter state that by reason of the attorney's negligence they had lost the benefit of the provision in the decree of the Court of appeal as to equal contribution by the parties as to costs, and that as against the legacy payable to them out of the estate of Pitambar Dhur they were not able to set off the costs payable by them; and (3) that the attorney's claim is a belated one and that the matter obviously needs enquiry into the claims put forward by the plaintiffs; and that that being so the Court in its discretion will refuse to make the order prayed for.
56. I agree, if I may say so with respect, with the view put forward during the course of the argument that when an application by an attorney for realization of his costs under the rule of this Court referred to above entails an enquiry it should not ordinarily be dealt with in a summary manner.
57. If I were not satisfied that there is not a shade of a shadow of reality in the plaintiffs' opposition to the present application and that this rule, if applied to the present case, would work very grave injustice to the attorney, I should not be prepared to depart from this rule. But this is a very special case. And as will be shown later, there are really no matters which call for enquiry; in my opinion the case set up by the attorney is indeed admitted by Ashutosh, although he may now choose to attempt to deceive the Court. I have gone through the entire record and I am satisfied that this is a matter in which the Court ought to exercise its discretion in favour of the attorney. No one can rise after perusing the record without being conscious that at almost every step the attorney since the termination of the proceedings in the administration suit has been subjested to harassment: deliberate and prolonged, at the hands of his clients. Whether the attorney should have gone on with clients of this description on his back, is a matter on which there is room for doubt, but that is neither here nor there. The various orders of the Court from time to time referred to in a previous portion of this judgment indicate to my mind that the attorney was left under the impression that if and when ha was in a position to pay off the fees due to counsel employed by him, there would be no difficulty whatsoever in getting an allocator issued and in obtaining an order for payment under the rule of the Court referred to above. If there had not been this impression created in the mind of the attorney, I can hardly conceive that the attorney would have waited so long, The rule of the Court referred to above is technically free from the statute of limitations and I see no reason whatsoever why the Court should not assist its own officer in getting his just and proper dues from his clients.
58. As regards the story of loss having been occasioned to the clients by reason of the attorney's negligence, I am by no means satisfied as regards the bona fides of the complaint made against the attorney. None of the parties cared to carry out the order of the Assistant Referee made in August 1915, neither any member of Narayan's branch nor Bipin nor Kally. Even as late as April 1924 neither Kally nor Bipin had got their bills taxed pursuant to the order of August 1915, and therefore it is difficult to see what had been lost to the estate of Narayan up to April 1924. But be that as it may I accept unreservedly the explanation offered by the attorney. He has pointed out to this Court several times that he was placed in so difficult a position by the brothers Asutosh and Nabin Chunder Dhur that it was impossible for him in the events which had happened to carry out the order of the Assistant Raferee of August 1915 and to get the bills taxed as directed by him. Let us see what Ashutosh said in March 1924 in answer to Mr. Ramesh Chunder Bose's charge. Mr. Bose made an affidavit on 19th March 1924 in which he stated among others as follows:
14. That during the prosecution of this suit and the appeal the said Ashutosh Dhur used to take from my office the cause papers and briefs of counsel most of them have not been returned to me.
15. That in or about 1915 the said Ashutosh Dhur and Nabin Chunder Dhur quarrelled amongst themselves and Ashutosh Dhur alleged that oausa papers and briefs of counsel were with Nabin Chunder Dhur and latter oharged Ashutosh Dhur had them ia his possession.
16. That in Suit No. 553 of 1917 wherein Nabin Chunder Dhur is plaintiff and Ashutosh Dhur and others are defendants being a suit for partition between them of the properties allotted to the heirs of Narain Chunder Dhur out of the estate of Pitambar Dhuir deceased. I am informed that an affidavit of documents have been filed by Ashutosh Dhur wherein many cause papers and briefs of counsel prepared in my office and relating to this suit; have been disclosed as being in his possession, and I wrote letters to Mr. K.K. Dutt, attorney for Ashutosh Dhur in the said partition suifr-requesting him to produoe those briefs and papers at the Taxing Office for taxing my bill of costs in this suit but he refused.
59. Ashutosh Dhur answered these allegations by his affidavit of 31st March 1924 and he stated as follows:
11. That I deny the correctness of the-allegations contained in para. 14 of the said affidavit and state that if any papers and briefs were taken it must have been done by the defendant Nabin Chunder Dhur who used to do everything in the case and if any papers and briefs have not been returned the said Nabin Chunder Dhur must be responsible for them.
12. That I admit the correctness of the allegations contained in para. 15 of the said affidavit but state further that the charge that I had whilst removing from the house taken cause papers and briefs of counsel with me is wholly untrue. (Note in this connexion that in para. 15 of Mr. Bose's affidavit there is no reference to anything suggesting the last three lines).
13. That with reference to the allegations contained in para. 16 of the said affidavit as regards the papers and briefs disclosed in my affidavit of documents in Suit. No. 563 of 1917, referred to in the said paragraph, I say that they were prepared by the defendant Nabin Chunder Dhur and are in his own handwriting and that they were produced before the Registrar during the enquiry about the ascertainment of counsel's fees payable by him herein and were examined and admitted1 by Babu Ramesh Chunder Bose to have been so prepared and I further say that I did not get any of the said papers from him but received them from Beniapukur Thana in a sealed box. In connexion therewith I further say that although my attorney at first insisted on prepayment of the costs of production of the said papers before the Assistant Taxing. Officer as requested by Babu Ramesh Chunder Boae he eventually and without payment produced them before the Assistant Taxing Officer who after looking through them did not consider them relevant for the purpose of taxation. And I state that it is not true that my present attorney Babu Kumar Krishna Dutt, refused to produce them before the Assistant Taxing Officer.
60. The matter on scrutiny turns out to be as follows : It appears that Ashu and Nabin had quarrelled; there were thereafter proceedings in the criminal Court ; their premises were searched, and the police took charge of their papers. It appears from Ashutosh's affidavit of documents in Suit No. 563 of 1917, to which reference has already been made by Mr. Bose in his affidavit that eventually Ashutosh secured from the Beniapukur Thana two steel boxes. In these steel boxes were the cause papers and briefs of counsel; they were the papers &c;, in the two Suits Nos. 875 of 1904 and 3 of 1898; that that was so is apparent from the affidavit of documents itself when Ashu came to file this affidavit he made a selection from the papers which came into his possession; these papers were what he considered relevant to his ease in Suit No. 563 of 1917. But the affidavit gives sufficient indication that there could be no doubt what soever that he and Nabin had the papers which should have been in the office of Mr. Ramesh Chunder Bose namely the papers in 6he two suits of 1898 and 1904.
61. On these materials is there any case for enquiry, detailed or otherwise, into the charge of negligence against the attorney brought by the plaintiffs? If the attorney had not the cause papers and counsel's briefs, how could he prepare and lodge bills with the Taxing Officer in accordance with the directions given by the Assistant Referee in August 1915? In my opinion on these materials the demand for enquiry is wholly unsustainable and ought not to be listened to, for Ashutosh is convicted out of his own mouth. To sum up : in my opinion the case against the attorney based on the ground of negligence is entirely disproved and there is no necessity whatsoever for any oral evidence.
62. The attorney has indicated in his affidavits with sufficient particularity what allocaturs and taxed bills he had in his possession; and he made over to Mr. Remfry, the receiver and commissioner of partition of the estate of Narain Chunder Dhur deceased, what papers he had in his possession. As far as I can find from the record the story of the negligence of the attorney although the same has frequently been trotted out by the plaintiffs has never been believed in by any single Judge in this Court and has in my opinion been proved to be false and I see no reason whatsoever why at the present moment, while the attorney is seeking an order for payment, it should be held, regardless of what has gone before, that the claim put forward by the plaintiffs as of such a nature as must induce this Court to hold that the attorney should be relegated to a suit in which the plaintiffs might plead set-off and where the attorney may be put to further difficulties. Further as regards the payments alleged to have been made to the attorney and not given, credit by the attorney no vouchers or receipts are produced and the allegations, to my mind, are not supported by any materials whatsoever. In my opinion there is no substance whatsoever in the allegations of the plaintiffs on this point, namely that they are entitled as1 a matter of right to claim set-off against the attorney's claim.
63. I now turn to the contention founded on the award or report of Mr. B.C. Chatterji. The expression 'estate' in Mr. Chatterji's award must refer to the estate of Pitambar Dhur deceased, but it may be noted in passing that the other parties interested in the estate of Pitambar Dhur deceased were not before Mr. Chatterji and they therefore would not be bound by the terms of the award. Now, as I read Chaudhuri, J.'s order, the whole object was to ascertain the quantum of fees payable to counsel. Chaudhuri, J.'s object was to deal finally with the application of Mr. Attormani Dasi which was before him after the quantum of fees payable to counsel has been ascertained. The entirety of Mt. Attormani's said application was not dealt with at any time by Chaadhuri, J., (owing to the fact that the learned Judge ceased to sit on the original side shortly after March 1920), but I am unable to read Mr. Chatterji's award or report with the consent of Mr. Bamesh Chunder Bose appended thereto, as amounting to a declaration by the attorney that in no event, as regards a substantial portion of counsel's fees, would he look to his clients for payment. In my opinion, the circumstances show that the award of Mr. Chatterji was obtained in the form in which it was couched because the plaintiffs and Nabin Chunder Dhur were anxious at the time that they should be able to set-off as against the claims of Bipin Bihari Dhur and Kali Chunder Dhur for costs, certain sums payable by the latter; in other words, the award in my opinion was framed in the manner in which it was done in order to effectuate set-off inter the three branches of the family of Pitambar Dhur. The plaintiffs have no doubt in the present proceedings attempted to raise a cloud, but it is a cloud of dust raised by unscrupulous people and it ought to be possible in the state of the record before us to see into the substance of the thing having regard to the history of this unfortunate litigation. In my opinion, after Rankin, J's order of 26th July 1920, the award ceased to have any operation at all and was a washout. If, as a matter of fact, distribution has taken place and the estate of Pitambar Dhur has gone out of this Court it is not the fault of the attorney. The members of the family of Narain Chunder Dhur have been righting among themselves, they being experts in litigation, and they have failed to seize in time the opportunity of exercising their rights of set-off, if such existed, against the claims of Bipin Behari Dhur and Kali Churn Dhur. But I repeat that as the plaintiffs are bound under their retainer to pay the attorney's costs it would manifestly be against all justice and reason and common sense to hold that in the events which have happened the attorney can only look for the major portion of the costs payable on account of counsel's fees to the estate of Pitambar Dhur and to nobody else. I am satisfied from the figures placed before us by Mr. Section M. Bose that the attorney has carried out his undertaking to give up two-thirds of the in pocket costs as against Ashutosh Dhur.
64. In my opinion there is no substance whatsoever in these two appeals and the same ought to be dismissed with costs.
Lort-Williams, J.
65. I agree with my Lord the Chief Justice.
66. The order of the Court therefore is that the appeals are allowed and the order of the learned Judge discharged. We do not propose to make any order as to costs either before the original Court or in the Court of appeal.