C.C. Ghose, Ag. C.J
1. This appeal is by an attorney named Pankajkumar Ghosh against an order of Lort-Williams, J., dated 18th November 1932, directing a change of attorney without payment of his costs. The circumstances under which that order came to be made, shortly stated, are as follows: It appears that this attorney was retained by one Sudheerkumar Shikdar, who is one of the defendants in Suit No. 1528 of 1926. The suit bad gone on for some time, in this sense that the suit had been pending for some time and had not been brought to a hearing, when an application was filed on 8th March 1932 for an order that
Babu Pankajkumar Ghosh, attorney for the applicant Sudheerkumar Shikdar, be discharged from further acting as his attorney and that Babu P. L. Mitter, an attorney of this Court, be appointed in his place as attorney for the applicant in the suit and that the applicant be at liberty to file a warrant of attorney in favour of Babu P. L. Mitter to act for him in this suit.
2. Lort-Williams, J., made the order referred to above on 18th November 1932, but he did not provide in the said order for payment of the costs of the attorney up to the date of the order itself. The order, as made by Lort-Williams, J., appears on pp. 28 and 29 of the paper-book and it runs thus:
It is ordered that the said defendant, Sudheerkumar Shikdar, be at liberty to discharge the said Mr. P. K. Ghosh from further acting as the attorney for the former in this suit and to appoint Mr. P. L. Mitter as his attorney in this suit. And it is further ordered that the said Mr. P. K. Ghosh shall have lien on the cause papers for the costs due to him in this suit from the said defendant Sudheerkumar Shikdar. And it is further ordered that the said defendant Sudheerkumar Shikdar do pay to the said Mr. P. K. Ghosh his costs of and incidental to this application including the fee to counsel to be taxed by the Taxing Officer of this Court.
3. The attorney, feeling himself aggrieved by this order, has preferred this appeal and he urges that the practice of this Court has always been, where the attorney has not discharged himself by his own misconduct, not to order a change of attorney until and unless the costs incurred by the attorney up to the date of the order for change are paid by the client or by the new attorney proposed to be engaged. On the other hand, the respondent contends, first, that this is not an appealable order and, secondly, that the order as made by Lort-Wil-liams, J., is quite correct and that no case has been made out for our interference with the same. As regards the question whether this is an appealable order or not, both my learned brother and myself are satisfied that this is an appealable order. The rights of the at-torneys have been determined by this order. The attorneys' rights having been determined by this order, that in itself is quite sufficient to entitle us to hold that this is an appealable order. Therefore having regard to the terms of Section 15, Letters Patent, nothing need further be said.
4. The respondent has invited us to consider the terms of Order 3, Rule 4, Civil P. C. Order 3, Rule 4, Civil P. C, may have application so far as the engagement of an attorney in a particular suit is concerned: but Order 3, Rule 4 does not make any reference whatever to what really happens when an application is made for a change of attorney. So far as that question is concerned, speaking for myself, during the whole time that I have been in this Court as a member of the Bar and now for nearly 15 years as a Judge of this Court, I have never known of any case where the attorney's costs have not been provided for in the order for change unless it be a case where the attorney by his own misconduct has discharged himself from further acting as attorney. But it is unnecessary to refer to my own experience here in this Court, because I am fortified in the view I take by authorities which are sufficiently well known to deserve recognition at the hands of the Judges of this Court. The rule which used to obtain in the old Supreme Court, with the establishment of which the institution of solicitors and attorneys came into existence in this country, is concisely stated in the late Mr. Belchamber's book on Practice of the Civil Courts at p. 22. Reference is made therein to the case of Nagender chunder Ghose v. Greenderchunder Ghose decided by three Judges of the Old Supreme Court in (1858) 1 Boul Rep 340. The statement of the law as is to be found in Mr. Bel-chamber's book runs as follows:
The rule laid down by the late Supreme Court of Calcutta, namely that, where a proposed change of attorney was for no solid reason, and the attorney did not .discharge the client the payment of costs should be a condition precedent to the granting of the orders, has been followed by the Calcutta High Court.
5. Be that as it may, Sale, J., who was a member of the Calcutta Bar before his elevation to the Bench, and who during the whole time that he was a member of this Court sat on the Original Side and who, it is not disputed, had unrivalled opportunities of acquainting himself with the practice of this Court, was of opinion, Basanta Kumar Mitter v. Kusum Kumar Mitter (1900) 4 CWN 767, that no change of attorney was to be made without making provision for the payment of costs, and I am content to follow what Sale, J., laid down as being the practice of this Court. The practice has always been, as far as I have understood, that no order for change of attorney is made .unless provision is made for payment of the attorney subject of course to this: that no such provision will be made where the attorney has by his own con-duct or misconduct discharged himself. In that view of the matter we are constrained to hold that the order of Lort-Wiiliam J. made in this case is not sustainable. The order therefore will be that the appeal will be allowed, Lort-William's, J. order will be set aside and the respondent Sudheerkumar Shikdar can obtain a change of attorney on payment of the appellant attorney's taxed costs. This order is being made upon the undertaking of the attorney Pankaj-kumar Ghosh to lodge his bills within ten days from date. If he carries out the undertaking there will be no order for costs of this appeal. In default, this appeal will stand dismissed with costs.
Costello, J.
6. I agree.