Pullan and Niamat-ullah, JJ.:— 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.
The applicant was the plaintiff in the suit originally instituted in the court of the Sub-ordinate 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 Sub-ordinate 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 memorandum of costs appended to the decree prepared by the District Judge were two sums taxed as costs properly incurred by the plaintiff; 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 Babu 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 Mst. Pania, wife and “mukhtar-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.
The defendants, on whose behalf the above named 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 the 8th of March, 1927, presented by Babu Sheo Narain Jafa, in which he represented to the District Judge that his clients were in 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. Babu 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”. Reading this order in the context in which it occurs, we think 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 Mst. 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 certificates, 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, chapter XXI of the General Rules applicable to the Sub-ordinate courts distinctly provides that “in drawing up a decree or order no fee to any legal practitioner not appearing for the Crown 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… 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.” There can be no doubt that the rule quoted above contemplates actual payment, and not a mere promise to pay, even though such promise is evidenced by a promissory note, bond or any other instrument. The learned District Judge was apparently under the impression that there is no law which made payment to a legal practitioner in the manner adopted in this case as no payment for the purposes of taxation of costs. The rule already referred to by us has the force of law, and is clearly against the view accepted by the learned Judge.
We think that B. Sheo Narain Jafa did not correctly represent matters to the learned District Judge in stating, that, if payments were made to the legal practitioners by promissory notes being executed in their favour, the same would be taxed as costs in the suit. Either he did not acquaint himself with the rules on the subject, or knew the rule quoted above and yet assured the District Judge that such costs could be taxed. In either case his action was unjustified. He was apparently anxious to secure payment of fees to himself and his junior colleague by promissory notes being executed in their favour. The District Judge was not opposed to that mode of payment, as he had been given to understand that payments made in that manner would be taxed as costs incurred in the suit. Be that as it may, we entertain no doubt that the payment of fees to a legal practitioner must be made in the manner laid down by rule 1, chapter XXI, already referred to, and that if payment is not actually made but is only promised it cannot be taxed as part of the costs incurred by the party alleged to have made the payment. This being so, the sums of Rs. 735, taxed as fee paid to B. Sheo Narain Jafa and Rs. 299, taxed as fee paid to B. Prem Mohan Lal, should not have been taxed.
The learned advocate for the opposite party has contended that the lower court had no jurisdiction to order an amendment of its own decree, which became merged in the decree of this Court passed on appeal and that, therefore, the application for amendment of decree was incompetent. According to his contention the application for amendment of decree must be made to the court of appeal, that is to the High Court in this case. It is not necessary for us to decide the legal question involved in this contention, because, assuming the application for amendment of the decree should have been made to this Court in the first instance. We can treat and are inclined to treat the application for revision as such application and dispose of the matter on the merits to prevent multiplicity of proceedings. We have already expressed our opinion on the merits, and whether we entertain the application as one for revision or as an original application made to this Court, our view is the same. There is no doubt that the District Judge who took a contrary view acted in contravention of rule 1, chapter XXI, and to that extent he exercised his jurisdiction illegally. If, therefore, we entertain the application as revision, the ground for interference under section 115 of the Code of Civil Procedure clearly exists.
The learned counsel for the opposite party also contended that the applicant was guilty of laches and his belated application for amendment of decree should not have been entertained by the District Judge and should not be entertained by this Court. We do not think there is any force in this argument. It is the duty of a court to prepare its decree in accordance with its judgment, and if there is any variance between the two it must correct the decree so as to make it in conformity with the judgment. The duty primarily rests with the court, and not with any interested party to apply to that court for amendment of the decree. When a judgment awards costs to a party, it implies costs deemed to be such according to rules. If a decree includes costs not legally taxable, it cannot be said to be in accordant with the judgment. Moreover, there are no facts on which the plea of laches or undue delay can be founded.
In view of the circumstances already stated, we allow this application in part and direct that the decree of the court of the District Judge, Budaun, in suit No. 70 of 1925 he so amended as to exclude the sums of Rs. 735 and Rs. 299, shown as fees paid to the defendants' pleaders, namely B. Sheo Narain Jafa and B. Prem Mohan Lal, from the memorandum of costs incurred by the defendants.
Another prayer, which the applicant made to this Court in revision, and to the learned District Judge in the first instance, was that a sum of Rs. 450 paid to the legal practitioners in miscellaneous proceedings taken for an order to set aside the ex parte decree, should not be taxed in its entirety. Rs. 225 was paid to the legal practitioners of each of two sets of defendants, whose defence proceeded on a common ground. The decree prepared by the trial court allows the entire sum of Rs. 450 as part of the costs incurred by the defendants against whom the plaintiff applicant's suit was dismissed. There, is no mistake in the decree in this respect. The suit was dismissed with costs, which means costs incurred by all the defendants against whom the plaintiff's suit was dismissed. We are satisfied that the order passed by the learned District Judge in this connection is not open to challenge. The application is dismissed in that respect.
In the circumstances of this case parties shall bear their own costs of the proceedings taken before this Court and those in the court of the District Judge by the application for amendment.