1. One Basdeonand Gir obtained leave to appeal to the Privy Council and on the due date deposited a sum of Rs. 4,000 as security for costs and a further sum for printing charges.
2. On 2nd November 1927 Mr. Newal Kishore, who was the legal practitioner for Shankernand Gir the respondent to the Privy Council appeal, drafted an application to the Court of the Subordinate Judge at Allahabad in which he prayed that the cash certificates for Rs. 4,000-12-0 and a sum of Rs. 798-11-0 for printing charges, which had been paid into the High Court by the appellant, might be attached:
and the amount of the decree may be so far as possible satisfied by attachment thereof.
3. The application came before Sudeshar Maitra on 4th February 1928. His order was a short one and may be given in full.
The items objected to relate to the printing charges and security furnished by the defendant objector in connexion with his appeal to His Majesty in Council. The decree-holder is anxious to lay his hands on these items too towards the satisfaction of his decree. No doubt, and it is not disputed, the same belongs to the defendant, but if he were to be deprived of it at this stage, it would be denying him his inherent right to appeal. It is not charitable for the decree-holder that he should pursue the judgment-debtor to this extent. As a Court of justice I think I should intervene equitably to let the judgment-debtor approach the Privy Council. In this view of the matter I allow this portion of his objection and direct that the two items shall not be attached in execution. No costs allowed.
4. It is clear that the learned Judge did not regard the application in a favour able light. He did not discuss whether the application was in part good and in part bad, and whether the one could be severed from the other, for the evident reason that the decree-holder was anxious to lay his hands on the money deposited in the High Court, with the result that if the application was granted, the appellant would be deprived of his right of appeal. The applicant did not ask for and did not want an order attaching any surplus, that might remain after the decision of the Privy Council. He wanted immediate payment of the money and nothing else.
5. Shantanand Gir appealed from this order. Vide: : AIR1929All791 The notice of appeal is undated and is signed by Mr. A.P. Pandey and Mr. B.L. Deva. The application (para. 1) sets out that the Court below was wrong in refusing to allow the decree-holder 'to proceed against the said money.' When the matter came up for argument in this Court it was apparent that Mr. Pandey had become aware of the dubious nature of the application, and in an attempt to render it innocuous, he claimed to attach so much of the money as might not eventually be required to satisfy the costs of the appeal. Had that been the form of the application in the first instance, no objection could have been taken to it.
6. The original application being in the opinion of the Bench a reprehensible proceeding which amounted to an abuse of the process of the Court, they issued notice to Mr. Newal Kishore and Mr. Pandey.
to argue the general question whether this Court has power to order a legal practitioner in appropriate circumstances to pay personally the costs of an application or suit, and secondly if the High Court has such power, whether it should be exercised in the present case.': (Vide A.I.R. 1029 All. 794(at 795).
7. The matter was referred to this Full Bench and at an early stage of the proceedings Mr. Pandey stated that at the hearing of the appeal:
It was common ground between counsel and the Bench that the object of the original application in the Court below was to burke the appeal to the Privy Council.
8. This statement was taken down word for word. It transpired subsequently that Mr. Pandey had argued the appeal in this Court without having had a consultation with Mr. Newal Kishore or the client and so his statement must not be taken to have been a repetition of anything said by them to him. That, however, does not destroy its force, and we can have no doubt that Mr. Pandey (a practitioner of repute and experience) and the Bench were right in describing the proceedings in the lower Court as having for their object the destruction of the appeal.
9. If the application had been granted and the money withdrawn, the respondent to the Privy Council appeal would have contended that the time for any second payment in had expired and the certificate must therefore be cancelled. Whether this manoeuvre would or could have been eventually carried to a successful conclusion is immaterial.
10. After Mr. Pandey had explained the position as he conceived it to be, Mr. Newal Kishore was asked for his explanation. He gave one which we regret to say was in our opinion untrue. He said that it was hoped that the result of the application would be that the appellant would pay over to his client another and a different sum of Rs. 4,000 so as to protect the Rs. 4,000 lying in Court. That explanation is foolish. If true, it indicates an intention to squeeze money out of the appellant by an application, which Mr. Newal Kishore must, as a lawyer, be deemed to have known had no, possibility of success. The reason why, in our opinion, he invented this story is that having heard Mr. Pandey's explanation and our reception of it he was afraid to admit the obliquity of the motive. We have got to say what was, in our opinion, the motive and we feel no difficulty about it. A perusal of the application shows that Mr. Newal Kishore's client wanted in the words of the Subordinate Judge 'to lay hands on the money.' A perusal of the judgment of Mr. Mitra shows that the argument proceeded on that basis and that the effect, i.e., the destruction of the appeal to the Privy Council, would follow as the result. That being the line of argument in the lower Court, there can be no doubt that the application when drafted was drafted with that object and intention.
11. Mr. Newal Kishore must have known perfectly well that no Court in this country has ever passed an order allowing money paid in by an appellant to the Privy Council to be taken out by any adverse claimant. If we were to accept his own explanation, the application was intended as a lever to extract money from the appellant. That in itself is an abuse of the process of the Court. We believe, however, that Mr. Pandey was right when he said the object was to burke the Privy Council appeal, and that he, when in Court, quickly realised the impropriety of the whole proceeding and tried to get on to safe ground by asking the Court to disregard his prayer for immediate payment and to order the attachment of the eventual balance, if any.
12. It is suggested that since the actual application, which was drafted and filed, was in form an application permitted by the Code of Civil Procedure, it is immaterial to consider with what intention. Mr. Newal Kishore drafted the application and pressed it. But it is impossible to divorce an act from the intention which accompanies it. As Lord Bowen J. said in Edgington v. Fitzmaurice  29 Ch. D. 459. 'The state of a man's mind is as much a fact as the state of his digestion' It is an inference from circumstances. In support of this view we have a decision most directly in point in Miller v. Knox  4 Bing. N.C. 574, where it was said:
It is also a contempt to abuse the process of the Court by wilfully doing any wrong in executing it, or making use of it as handle to do wrong.
13. Again it was held in Taylor v. Lawrence  I.J. 422 that it would be proper under the inherent jurisdiction to order the solicitor to pay costs to the other side where he has improperly undertaken a case without any bona fide chance of success or for the purpose of exacting money from the defendant. This latter phrase exactly covers the present case.
14. The utter impossibility of divorcing, in a matter such as we are considering, an act from the dishonourable intention and purpose with which it was committed is apparent, if indeed support is required for such a proposition, from the view expressed. In re, Grey 2 Q.B. 442 where the jurisdiction of the Court over its officers was declared to exist for the purpose of enforcing honourable conduct on the part of the Court's own officers:
15. 'Can it then be gravely suggested that it is open to a legal practitioner to employ a process of the Court for a 'dishonourable' purpose?
16. The question being with what intention Mr. Newal Kishore drafted the application, we have the following facts. He appeared in Court in a proceeding which he must have known could not succeed. He frankly asked for the removal of the money from the High Court and for nothing less. When the Judge laid emphasis in his order on the result, namely the sweeping away of the Privy Council appeal, he did not dissent from that as the logical consequence. It was indeed the desired consequence. Can anyone doubt that the drafting of the application was the first essential step which it was hoped would result in the ultimate burking of the appeal if by good luck the Court could be imposed upon sufficiently to make the order?
17. We find this in fact to have been his intention and that it was reprehensible and that his action amounted to contempt of Court. The result has been to put the appellant to expense in the Court of the Subordinate Judge and in this Court. That is the direct consequence of the initiation and prosecution of proceedings which were in their nature an abuse of the processes of the Court.
18. In this connexion it is important to note that neither Sir Tej Bahadur Sapru nor Mr. Pandey nor Mr. Newal Kishore attempted to justify the application or the proceedings in the lower Court as being made honestly in good faith.
19. In these circumstances can any decision be more right and proper, if the Court has power so to order, than that Mr. Newal Kishore should reimburse the appellant for all the expenses to which he has been put by proceedings launched against him without lawful (justification.
20. Mr. Pandey stands in a different position. It is true that he signed the notice of appeal but he was not the originator of the proceedings, and as we have said, he virtually abandoned the application as untenable. In our view it was not until he was preparing the case, perhaps not even until he was in Court, that the real object of the proceedings dawned upon him. He then sought to get out of the difficulty in which he found himself by saying he would be content with an order of attachment limited to any balance which remained after satisfaction of the costs of the appeal. We repeat that his client did not want that, indeed never had asked for it. As Mr. Pandey had no instructions from his client or Mr. Newal Kishore, it is obvious that he did this of his own motion, because he realised the impropriety of the original proceedings and was not prepared to support them.
21. We are therefore of opinion that Mr. Pandey's conduct was not reprehensible.
22. It now remains to consider the powers of this Court to deal with the state of facts which we have found to be established and more particularly whether this Court has power in appropriate circumstances to order a legal practitioner to pay costs personally. Those powers, if they exist, might exist:
(1) as 'inherited,' i.e. they might be found to have existed in some previous Court of which this is the direct successor, though its name and constitution may have changed. In the present case there is no suggestion that this Court is the direct and immediate successor of any earlier Court having such powers, and it would not be necessary to mention this possible source, but that there has been some confusion in the argument and discussion between 'inherited' 'inherent' and 'statutory' powers;
(2) as 'inherent' in every Supreme Court;
(3) as particularly statutory, i.e. directly conferred by statute;
(4) under a general power conferred by Section 35, Civil P.C.
23. It being unnecessary to consider whether this Court has 'inherited' powers further than we have already mentioned, we proceed to consider the question whether the Court has any 'inherent' powers, and if so, the nature and extent of those powers.
24. To facilitate appreciation of what follows we may state forthwith our conclusions and then our reasons therefor. We are of opinion:
(a) That to is Court has inherent powers to punish contempt of Court committeed against either this Court or a Court subordinate to it. For such contempt this Court has power to inflict a punishment of fine or imprisonment. (b) That this Court has such power to punish for contempt committed by any person, whether that person be or be not a legal practitioner, (c) That, based on and having its origin in the power to deal with contempt, this Court has the more particular power to direct a legal practitioner to pay costs to the extent of the loss sustained by the injured party where he has committed a reprehensible act in the performance of a professional duty such as would be performed by a solicitor in England.
25. So far as this Court is concerned, the question whether it has inherent powers to punish a contempt of Court committed against a subordinate Court was definitely answered in the affirmative by the decision of three Judges in the Special Bench case Hadi Husain v. Nasiruddin : AIR1926All263 , and was further settled beyond any doubt by Act 12 of 1926, which came into force on 8th March 1926, but which had not come into force when the contempt in the case just referred to wag committed and the proceedings initiated.
26. Before leaving this point we may refer to the decision in R.v. Almon  Wilm 243, in which it was said that it is a necessary incident to every Court of Justice, whether of record or not, to fine or imprison for a contempt of the Court acted in the face of it.
27. That this Court, having inherent power to punish for contempt of Court, is not deprived of that power by the mere fact that the offender is a legal practitioner is really self-evident for there is no reason whatever why a legal practitioner should be in a privileged position. If support, however, be needed for this proposition it is to be found in Rainy v. Sierra Leone Justices  8 Moo. P.C. 47 where the Judicial Committee of the Privy Council held that they had no jurisdiction to entertain an appeal from orders made by a Court of Record in the colonies inflicting a fine upon a practitioner for contempt of Court, such Court being the sole Judge of what constituted the contempt, From this it is clear that (whatever may be the effect of the Legal Practitioners and Bar Councils Acts upon inherent powers to deal with misconduct, which we shall next discuss) this Court has inherent power to punish any act by a legal practitioner which amounts to contempt.
28. The present Bench of seven Judges being agreed that the High Court of Allahabad being a Supreme Court in the sense in which that term is used in England, has prima facie an inherent jurisdiction to deal with its own officers and, included in that jurisdiction, power to order a legal practitioner to pay costs, it remains for us to discuss whether that inherent jurisdiction has been superseded or taken away from the Court by legislative action.
29. A reference has been made in argument to Clause 14, Letters Patent, which it was suggested limited the powers of the Appellate Court in this respect to the powers exerciseable by the Subordinate Courts, but the argument was not and could not be seriously pressed in view of the fact that the inherent powers of the Court, whatever they may be, exist independently of statute.
30. The only other legislative action, which, it is suggested, has taken away from this Court its inherent powers admittedly pre-existing, is to be found in the Legal Practitioners Act 18 of 1879 and the Bar Councils Act No. 38 of 1926.
31. It is clear from the authorities that a jurisdiction existing, in a Court can only be taken away by the use of precise and distinct words in a statute or as some authorities have held by the necessary implication of the words used. In the same way if the common law is to be altered, there must be equally precision in the words of the Act. In the case of Galsworthy v. Durrant  2 L.T. 788, the then Master of the Bolls said as follows:
According to the well established principle which regulates the construction of Acts of Parliament, an existing jurisdiction cannot be taken away except by precise and distinct words.
32. Lord Halsbury in Leach v. Rex  A.C. 305 said:
If you want to alter the law which has lasted for centuries to suggest that is to be dealt with by inference and that you should introduce a new system of law without any specific enactment of it seems to mo to be perfectly monstrous.
33. Tindal, C.J., in Albon v. Pyke  4 Man. & G. 421 said:
The general rule undoubtedly is, that the jurisdiction of the superior Court is not taken away, except by express words or necessary implication.
34. Lord Campbell in Southampton Bridge Co.v. Local Board of Southampton  8 E.B. 801 said:
Inasmuch as the power of the Court Queen's Bench to changs venue is a common law power, words should be very strong which are relied upon to take away such power.
35. Examples need not be multiplied.
36. This rule for the construction of statutes has been explicit in English Law for centuries. Bearing this in mind we now will discuss the statutes in India which, it is suggested, take away or limit the admitted inherent jurisdiction of this Court. The first is Act 18 of 1879 known as the Legal Practitioners Act. The preamble to that Act begins:
Whereas it is expedient to consolidate and amend the law relating to legal practitioners.
37. It has been contended that the word consolidate must be construed as meaning that the law in relation to legal practitioners as laid down by this Act is conclusive and final and leaves existing no other jurisdiction in the Court to deal with legal practitioners. We have searched in vain for any authority which establishes such a proposition. 'Consolidation' is the reduction into systematic form of the whole of the statute law relating to the same subject matter as illustrated by judicial decisions. This is the definition given in the Encyclopedia of English Law, 2nd Edn. Vol. 3 at p. 288. 'Consolidation' merely places together in a later volume of the Statute Book enactments previously scattered over many volumes:
The Courts will lean against any presumption that such an Act was intended to alter the common law: Griffith, C.J., in Nolan v. Clifford  1 Australia C.L. 429.
38. Another rule in applying a Consolidating Act is that the statutes not expressly repealed continue in force without modification. The same applies to jurisdiction. There is nothing in the Legal Practitioners Act which takes away the inherent jurisdiction of this Court. There are no 'express, precise or distinct words.' By Sections 12 and 13 it is enacted that the High Court may suspend or dismiss any pleader for certain offences. It in no way deals with the inherent disciplinary jurisdiction over the Court's officers which is based upon the doctrine of contempt: see Halsbury, Vol. 26. p. 828 para. 1349: and the observations of Lord Justice Kay in the case In re, Grey  2 Q.B. 440 at p. 450.
39. In England the jurisdiction of then Court:
is quits independent of the statutory jurisdiction over solicitors in disciplinary matters now contained in the Solicitors Acts 1888 and 1919: see Annual Practice, 1929, p. 2065.
40. In the same way the inherent jurisdiction of this Court is quite independent of the statutory jurisdiction contained in the Legal Practitioners Act.
41. In the case In re, Grey (13) at p. 444 Lord Esher said: 'It was suggested that there are other means' (i.e., proceedings before the Incorporated Law Society to strike the solicitor off the roll):
of proceeding against the solicitor for any breach of duty which he may have committed; but the fact of there being such other means does not take away the jurisdiction to make the order for payment of the money. Of course, it would not be exercised cumulatively in addition to such other means, but a Court may take whichever course it may think right.
42. We may look at this matter from another aspect. The improper act of a solicitor or in this country a legal practitioner acting as a solicitor may amount to mere neglect, or to something more grave and amounting to misconduct. It is clear that in England the summary jurisdiction inherent in the Court may be and has been often exercised in cases where there is no allegation of acts amounting to misconduct but where there has been nothing but the 'simplest neglect': see in the case In re, Dangar's Trusts  41 Ch. D. 178, and Lord Justice Turner in Dixon v. Wilkinson  4 De. G. & J. 504, in which he said:
I strongly incline to the opinion that the jurisdiction is not limited to cases of malfeasance but extends also to cases of mere neglect.
43. This view was endorsed In re, Dangar's Trusts  41 Ch. D. 178 by Sterling, J. It being agreed that this Court had at one time inherent jurisdiction co-extensive with that of the Supreme Court in England, to what extent is it to be suggested that inherent jurisdiction can no longer be exercised owing to the passing of the Legal Practitioners and Bar Councils Acts. Assuming for a moment that the inherent jurisdiction is superseded in cases of misconduct within the meaning of those Acts, what is to be said in regard to the inherent jurisdiction to deal with cases of 'simplest neglect?' How could it be possible to draw the line in each case between cases of neglect and cases into which there enters an element of misconduct.
44. The Bar Councils Act No. 38 of 1926 is the Act, which it is contended, clearly takes away the inherent jurisdiction of this Court. The preamble to this Act uses the word 'consolidate' and what we have said above relating to the Legal Practitioners Act equally applies to the Bar Councils Act.
45. In neither of these Acts is there anything that expressly deprives this Courts of its inherent powers, nor has our attention been drawn to anything whatsoever in support of the bare assertion that the powers have been taken away by necessary implication.
46. We are, therefore, of opinion that the inherent jurisdiction of the Court has not been superseded or modified or in any way limited by either of these two Acts.
47. While this, beyond any doubt, is our opinion on the construction of the statute itself, we are confirmed in our view by reading the statement of objects and reasons of this Act. In para. 5 of the statements of the objects and reasons it is said:
The existing disciplinary jurisdiction of the High Court should be maintained, but the Court should be bound before taking disciplinary action against an advocate, except in regard to contempt of Court and the like to refer the case to the Bar Council for enquiry and report.
48. It is clear from these words that the intention of the framers of the Act was clearly to save to the Court its original inherent jurisdiction in this matter. It is to be noted that the summary disciplinary jurisdiction which we are discussing is based on the doctrine of contempt, and, therefore, the words underlined (Italicized) above clearly cover the inherent jurisdiction of the Court in this matter. It has been suggested that their Lordships of the Privy Council have held that reference cannot be made to the Statement of objects and reasons for the purpose of interpreting a statute even where there is ambiguity. It need hardly be said that if this were a correct statement of what was held by the Privy Council, there would be an end of the matter, and no reference by a Court in India to the statement of objects and reasons would be permissible. But it is far from clear that this is so. The suggestion has its origin in the remarks of their Lordships in Administrator General of Bengal v. Prem Lal  22 Cal. 788(799) in the year 1895. Their Lordships having given their own view of the effect of the law which was under consideration concluded their judgment with this brief observation:
Their Lordships observe that the two learned Judges who constituted the majority in the appellate Court, although they do not base their judgments upon them refer to the proceedings of the legislature which resulted in the passing of the Act of 1874 as legitimate aids to the construction of Section 31. Their Lordships think it right to express their dissent from that proposition. The same reasons which exclude these considerations when the clauses of an Act of a British legislature are under construction, are equally cogent in the case of an Indian Statute.
49. It will be noticed that what their Lordships prohibited was a reference to 'the proceedings of the legislature which resulted in the passing of the Act.' There is nothing in the above ruling prohibiting reference to the statement of objects and reasons which is not part of the 'proceedings of the legislature.' The use that had been made of these matters by the Calcutta High Court was two-fold: see Administrator General of Bengal v. Prem Lal  21 Cal. 732(766), Prinsep, J., there said as follows:
Accordingly the introduction of any Bill into the Legislative Council is always accompanied by a statement of the objects and reasons for the proposed measure. On these grounds I believe, the Judges of our Court have taken this statement of objects and reasons into consideration as having (sic. giving) some indication of the motives which have caused legislation on any particular subject and the object which it is desired to attain.
50. Here Prinsep, J., specifically referred to the statement of objects and reasons as to the admissibility of reference to which he had no doubt and their Lordships of the Privy Council expressed no dissent from the use made of it, and thereby impliedly assented to the use made of it. He then continued:
An original Bill is, as experience has shown considerably altered in its character and scope while passing through the Legislative Council, and chiefly after its committal to a Select Committee for report, after consideration of the opinions expressed by various persons, official and non-official, on the measure before the Council. As an easy and certain way of learning the amendments contemplated and proposed by the Select Committee it is not unusual, and I think not improper, to refer to the report so made. The report contains mention not only of the proposed amendments of the law but generally reasons for recommending them. By this means we can learn the reasons for which legislation has been thought necessary, and the objects in view, that is, the particular points on which it is desired to amend the existing law or for passing any new law.
51. It will be noted again here that in this passage referring to the Select Report, Prinsep, J., speaks of using what happened while the Bill was 'passing through the Legislativa Council' a phrase practically identical with that used by their Lordships of the Privy Council, 'The proceedings of the legislature which resulted in the passing of the Act' and it was in regard to using these proceedings, i.e., the report of the Select Committee, that he expressed Some diffidence, it would seem, therefore, that the correct interpretation of their Lordships' opinion is that what they were condemning was a reference to the proceedings of the Council and not the reference to the statement of objects and reasons. We are further confirmed in this view by a reference, to the state of the law in England where, as appears clearly, the debates and other proceedings in Parliament are not permissible matters for consideration, and where, as it appears, there is no judicial authority for holding that material which precedes or accompanies the presentation of the Bill, and of which the Bill is the direct outcome, is not admissible. Before considering further the English law we would note that we have considered a number of cases in the Indian Courts subsequent in date to the decision of their Lordships just referred te, but in none of those cases does the distinction to which we have adverted appear to have been noted; and, with one or two exceptions, they only refer to the proceedings actually in the Council. In O.S. Parameswara v. Kittunni : (1917)33MLJ591 , their Lordships of the Madras High Court said:
Supposing, however, there is some ambiguity in an Act, then the preamble and the object of the Act can be referred to, as has been dona by the Privy Council recently in Kandukuri Balasurya Prasadha Row v. The Secy. of State A.I.R. 1917 P.C. 42. In this last cast case their Lordships of the Privy Council said: The construction of the sanads in the way their Lordships construe them has the advantage of being in ample accord with the known policy and objects of the permanent settlemant.
52. The learned Judges of the Madras High Court continued:
In Administrator General of Bengal v. Prem Lal  22 Cal. 788 (799) their Lordships of the Privy Council said that the proceedings of the Legislature, which resulted in the passing of an Act, cannot be referred to as legitimate aids to the construction of the particular section which was construed in that case. In that case, however, the language, according to their Lordships of the Privy Council, was quite clear.
53. Turning to the law in England, Craises in his Treatise on Statute Law (Edn. 3, 1923), says at p. 121:
It is now generally agreed that reference may be made to reports on the effect and defects of previous statutes in pari materia. In Eastman Photographic Materials Co. v. Controller General of Patents  A.C. 571, it was held that for the purpose of construing the Patents Act, 1888, reference could be made to the report of a commissioner appointed in 1887 to inquire into the duties, arrangements etc., of the Patent Officer under the Patents, etc., Act 1883. Before this there had been a disposition on the part of the Judges with some exceptions, to disallow reference to such reports, which were considered scarcely legitimate guides to the construction of the statute which is the outcome of a report.
54. Again Craises says on the same p.121:
The memorandum or breviate (semble, statements of objects and reasons) now usually prefixed to Bills of considerable importance, and especially to consolidation Bills, often supplies useful hints as to the intention of the draftsman, but has not yet been adopted as an aid to the Judges in construing the Act when passed.
55. This would seem to suggest at any rate, that the learned author does not consider prohibition of the use of such memorandum or breviate to be included in the prohibition of the use of the debates of other proceedings which may be properly described as proceedings in the passing of an Act for the reasons we have given, we do not think that the interpretation which has been placed on the decision of their Lordships in Administrator General of Bengal v. Prem Lal  22 Cal. 788(799), without any consideration of the essential difference between the statement of objects and reasons and the debates in Parliament or in Council, is justified. Altogether independently of the statements of objects and reasons we have given our grounds for holding that the Indian Acts do not take away the inherent powers of this Court. A consideration of the statement of objects and reasons of the Bar Councils Act, which we consider a legitimate, indeed necessary, aid to interpretation, in cases where there is doubt, puts the question we have to consider in our opinion, beyond argument.
56. As to the scale on which payment of costs may be ordered there can be no doubt that: 'What; is to be ascertained is the loss which the party has sustained.' Dixon v. Wilkinson  4 De. G. & J. 504 and that the legal practitioner can be ordered to make good the loss occasioned by his neglect or breach of duty': see Marsh v. Joseph  1 Ch. 213.
57. We restate then, our conclusions as to the inherent powers of this Court:
(a) That this Court has inherent powers to punish contempt of Court committed against either this Court or a Court subordinate to it. For such contempt this Court has power to inflict a punishment of fine or imprisonment.
(b) That this Court has such power to punish for contempt committed by any person, whether that person be or be not a legal practitioner.
(c) That, based on and having its origin in the power to deal with contempt, this Court has the more particular power to direct a legal practitioner to pay costs to the extent of the loss sustained by the injured party where he has committed a reprehensible act in the performance of a professional duty such as would be performed by a solicitor in England.
58. It being our view that the inherent powers exist, as stated by us, in this Court by virtue of its being a Court of supreme jurisdiction, it is unnecessary to consider further whether we have powers co-extensive with the inherent powers exercised by the Court of King's Bench in England, those powers being conferred on us by statute. It was held by a member of this Bench (Boys, J.), in Hadi Husain v. Nasiruddin Hyder A.I.R. 1926 All. 263, that the power was not only inherent in this Court, but together with all similar powers exercised by the Court of King's Bench was conferred on us by statute, and up to the present date no dissent from that decision has been expressed in the law reports. But it is unnecessary to pursue this aspect of the case further.
59. We next have to consider the effect of Section 35, Civil P.C. Sub-S. (1) reads as follows:
Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid.
60. They words 'by whom' are very wide and on the face of them would seem to give the very largest discretion to the Court in the matter of the payment of costs. This becomes clearer when we find that in Section 187, Civil P.C., of 1859 and Sections 219 and 220, Civil P.C., of 1882, the words 'by whom' were not used, but the words by which party' were used instead. The fact that the word 'party' has been expunged from the present Civil Procedure Code makes it in our opinion clear that the words 'by whom' are deliberately used to give the Court complete discretion in the matter of costs. If anything could make this clearer, we have only to look at Section 35(a)(1) where the word 'party' is used. For the contrary view it is not, as we understand, suggested in this case that either the terms of the Legal Practitioners Act or the Bar Councils Act or of any other statute override the clear wording of Section 35 and indeed it is manifest that an Act providing for the punishment of misconduct out not for payment of costs (except by a tortuous device to which we shall refer) cannot supersede an Act providing directly for costs but for punishment for misconduct. It is, however, suggested that Section 35 'is not intended' to cover any case where the act of a legal practitioner comes within the scope of the term 'misconduct' within the meaning of the Legal Practitioners and Bar Councils Acts, or that in some such way the clearly wide scope of Section 35 is to be narrowed. Nothing to support this assumed limitation is stated. In our view there is no justification for such limitation; and we would go further and say that even where the act of the legal practitioner comes within the term 'misconduct' it is not necessarily even desirable to proceed under the Legal Practitioners or Bar Councils Act to the exclusion of Section 35 for the latter provision serves a wholly different purpose. The effect of Section 35 is to give the Court power not merely to punish the offender but to punish him with the direct purpose of compensating the injured person at any rate to the extent of the legal costs. The only way by which recoupment of money to the injured party could be effected as a result of proceeding under either of the Acts named, would be by the tortuous method of inflicting a period of suspension upon the legal practitioner coupled with a condition putting an end to or reducing the period of such suspension in the event of his paying a certain named sum by way of costs to the aggrieved party. This has only to be stated to suggest the undesirability of obtaining by such tortuous method a result which the legislature has clearly given the power to this Court to attain in part at any rate by means of Section 35, Civil P.C.
61. In view of the opinion that we have expressed we would discharge the rule issued to Mr. Ambika Prasad Pandey and in the exercise of our inherent powers direct the ascertainment of the total costs suffered by the judgment-debtor as a consequence of the acts of Mr. Newal Kishore which we have found to be reprehensible and direct the payment of those costs to him by Mr. Newal Kishore.
Sulaiman, Banerji, Sen and Niamatullah JJ.
62. Our conclusions are as follows:
1. (a) The inherent powers of the Supreme Court of Calcutta were not conferred on the Allahabad High Court by the High Courts Act, 1861.
(b) No power to exercise inherent disciplinary jurisdiction over legal practitioners independently of the Legal Practitioners Act and the Bar Councils Act, now exists in the High Court MM respect of their professional or other misconduct.
(c) No power to punish for contempt of an inferior Court now exists independently of the Penal Code and the Contempt of Courts Act.
(d) No disciplinary power over legal practitioners or power to punish for contempt outside the Penal Code is vested in the subordinate Courts.
2. (a) Section 35, Criminal P.C., has nothing whatsoever to do with disciplinary action against legal practitioners for misconduct or with contempt of Court.
(b) Under Section 35 costs cannot be awarded against a legal practitioner as such; but where they have been occasioned by his act or omission under circumstances in which a stranger to the action can be made liable, he may be ordered to pay such costs.
(c) Costs in excess of the taxable amount in the cause can in no circumstances be awarded under Section 35.
1. The legal position of Mr. Pandey was perfectly correct both as taken up in
(a) the grounds of appeal, and (b) his arguments.
2. (a) The application filed Mr. Newal Kishore was in itself innocuous.
(b) The way in which it was pressed in argument in the Court below was reprehensible, but the application should not have been dismissed in toto on that ground.
(c) This is not a case in which costs can be ordered against Mr. Newal Kishore.
(d) We express no opinion whether or not Mr. Newal Kishore was guilty of any professional or other misconduct or of contempt of Court.
Sulaiman, Banerji and Sen, JJ.
63. The first question referred to the Full Bench is:
Whether this Court has power to order a legal practitioner, in appropriate circumstances to pay personally the cost of an application or suit?
64. In order to answer this it is necessary to examine all the possible sources through which this High Court might have derived such jurisdiction. The jurisdiction might have been acquired not only under the Letters Patent, the High Courts Act, and subsequent statutory enactments, but might also have 'inherited' from some of the Courts which were abolished or the High Court may possess an inherent jurisdiction to deal with its officers in this way.
65. In this province advocates ordinarily occupy the dual capacity of counsel and solicitors. They not only 'plead' but also 'act and have direct dealings with their clients, and indeed combine all the functions which counsel and solicitors perform in England. One would therefore expect that if advocates are acting like solicitors they would be subject to liabilities similar to those of solicitors in England.
66. The position of a solicitor in England is perfectly clear. He is an officer of the Supreme Court of Judicature, over whom it exercises summary and disciplinary jurisdiction and against whom orders for costs of litigation, in appropriate cases, are frequently passed. This jurisdiction has always been considered to be inherent and both antecedent to and independent of the rules of the Supreme Court.
67. In Halsbury's Laws of England Vol. 26, Part 6, Section 1, p. 828, it is stated:
The Court possesses a disciplinary jurisdiction over solicitors, as being its officers. This jurisdiction, though it has been extended by statute and by the rules of the Supreme Court, is inherent in the Court, and is based upon the doctrine of contempt. It is exercisable summarily by writ of attachment or by committal.
68. In Section 2, at p. 830 it is stated:
The jurisdiction is based upon the right of the Court to require its officers to observe a high standard of conduct, it is immaterial that any misconduct of the solicitor is suggested.
69. As to a solicitor's liability to pay costs it is remarked in Section 3, pp. 832 and 833:
The Court has power to order a solicitor to pay any costs occasioned by his misconduct or default in course of legal proceedings to the person injured thereby or to indemnify his client in respect of his liability to pay them.
70. Numerous cases have been quoted in this part showing that solicitors were ordered to pay costs direct to the opposite party where proceedings were instituted or defended without authority from the client, or on behalf of a non-existent client or for nonjoinder or for bringing speculative actions etc. or default.
71. A large number of cases are collected in the Empire Digest, Vol. 42, Part 10, Section 4, pp. 337 to 355. In this Digest also in para. 3554, it is stated that:
Every Court possesses inherent authority to prevent contempt of its proceedings and exercises censorial power over its officers.
72. The basis of this authority is the maintenance of honesty of officers of the Court and a high standard of conduct: United Mining and Finance Corpn., Ltd. v. Becher  2 K.B. 296(305).
73. Condery in his Treatise on Solicitors (pp. 1, 2 and 138) has pointed out that the liability of the solicitors in England exists on account of their being officers of the Court and jurisdiction over them is exercised in that capacity.
74. In the Annual Civil Practice 1929, Part 4, Division 3, p. 2065, it is clearly stated that the summary jurisdiction of the Court over solicitors is quite independent of the statutory jurisdiction over solicitors in disciplinary matters now contained in the Solicitor's Act, 1888 and 1919. In addition to its statutory jurisdiction, the Supreme Court exercises a summary jurisdiction over the proceedings of solicitors who are its officers. On p. 2067 it is further stated that the Court has also full power either under its general jurisdiction or special rules of Court summarily to visit a solicitor with costs occasioned by his misconduct, negligence or default.
75. The Supreme Court of England has framed special rules for making solicitors liable for costs, e.g., Order 54, Rule 7, and O.65, Rr. 5 and 11. But those rules are by no means exhaustive and the disciplinary jurisdiction is being exercised even independently of those rules.
76. All the English cases which we have seen were cases arising on the original Side of the High Court and we have not been able to find any case wherein an appeal from an inferior Court costs have been awarded against a solicitor. There is, however, the case of Ashley v. Seagrave  1 Barn. K.B. 282, in which the Chief Justice remarked that the King's Bench:
constantly exercises its jurisdiction in correcting the misbehaviour of officers in all inferior jurisdiction.
77. On principle it would seem to make no difference whether the matter comes up to the High Court on its original or the appellate side. As the jurisdiction is exercised over solicitors because they are officers of the Court, the appellate Court would be seised of the whole case and can take disciplinary action no matter whether the liability arose on account of conduct before it or in any one of its subordinate Courts.
78. But it is clear that even in England inferior Courts do not posses disciplinary jurisdiction over solicitors and a County Court Judge cannot make an order for payment of costs: Davies v. Coles  L.T. Jo. 577, quoted in the Annual Practice 1929, pp. 1399.
79. In India the Supreme Courts of Calcutta, Bombay and Madras had jurisdiction within the areas of their respective presidency towns where they applied English Common Law. This common law was not applicable to the Courts in the mufassil. In Ram Coomar Coondoo v. Chunder Canto Mukerji [1876-77] 2 Cal. 233, their Lordships of the Privy Council remarked at pp. 235:
so far as coneerns the mufassil there is no ground on which it can be contended that these laws are enforced there. The question has generally been whether they are in force in the presidency towns although the distinction between the presidency towns and the mufassil has not been always borne in mind:
also see the Mayor of the City of Lyons v. Hon'ble the East India Co. [1836-37] 1 M.I.A. 175 pp. 246-9. The mufassil was within the territorial jurisdiction of the Sudder Dewani Adalat which in cases for which no specific rules existed had to:
act according to justice, equity and good conscience. (Reg. 6 of 1793, Section 31).
80. It may however, be conceded that the Supreme Courts possessed the same inherent jurisdiction as the King's Bench Division possessed over its officers. It may further be conceded that the three Presidency High Courts of Calcutta, Bombay and Madras have, over and above the powers conferred upon them by their respective charters acquired other powers formerly possessed by their respective Supreme Courts, even though the territorial jurisdiction of the Presidency High Courts now extends over the whole of the Presidencies and not only the presidency towns to which the jurisdiction of the Supreme Courts was limited. In this sense one may say that the Presidency High Courts which have superseded the Supreme Courts have 'inherited' the inherent jurisdiction of the King's Bench Division.
81. But the same argument cannot apply to the Allahabad High Court. The province over which the Allahabad High Court now exercises jurisdiction was never within the territorial jurisdiction of any of the three Supreme Courts and the latter had no jurisdiction over the Courts or practitioners in this territory. The province was originally within the jurisdiction of the Sudder Dewany and Nizamat Adalat at Calcutta, and by Reg. 6 of 1831, Section 3 separate Courts of Sudder Dewany and Nizamat Adalat was constituted for these Provinces and was stationed at Allahabad. By virtue of Section 6 it possessed within the territories subject to it jurisdiction:
all the powers vested under the existing regulations in the Courts of the Sudder Dewany and Nizamat Adalat.
82. The Sudder Adalat at Allahabad was in no way under the Supreme Court of Calcutta, but was the highest civil Court in the province and appeal from it lay directly to the Privy Council. This Court did not apply the English Common Law but acted according to justice, equity and good conscience.
83. Our High Court was established in 1866 and could hardly have 'inherited' the powers of the Supreme Courts. To use the word 'inherited' with reference to our High Court is using a somewhat loose language because that word would have been appropriate only if our High Court had taken the place of any of the Supreme Courts and had succeeded to it. As shown above, our High Court has been established by Letters Patent in place of the Saddar Adalats, and not any Supreme Court, which had jurisdiction in this Province.
84. Coming to the question whether the powers of the Supreme Courts have been conferred upon us by statute we must examine the High Courts Act. Although that Act has now been repealed in toto, the jurisdiction conferred under it has been preserved under Section 106, Government of India Act, 1915. It has been suggested that the combined effect of Clauses 16 and 9, High Courts Act, 1861(24 and 25 Victoria, Ch. 104) is to confer upon our High Court all the powers of the Presidency Supreme Courts. This was the view expressed by one learned Judge in Hadi Husain v. Nasiruddin Hyder : AIR1926All263 but another Judge was not prepared to agree with that view. Now Clause 16 does not confer upon the High Courts to be newly established all the powers of the Supreme Courts which were abolished, but only says that
all the provisions of this Act, shall as far as circumstances may permit be applicable to the High Court established in the said territories.
85. It undoubtedly makes Clause 9 applicable to our High Court. Now Clause 9 provides that;
Each of the High Courts to be established under this Act shall have and exercise... jurisdiction and all such powers and authority for and in relation to the administration of justice in the presidency for which it is established (as may be granted by the Letters Patent), and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor General in Council the High Court to be established in each presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same presidency abolished under this Act.
86. Had the clause merely said that the new High Courts shall have the powers of Courts abolished, it would have followed that all the powers of the Supreme Courts which were abolished would be vested in such High Courts. But the clause vests in the new High Court only the jurisdiction of the Courts in the same presidency abolished under the Act. Applying this clause to our High Court 'as far as circumstances permit' it would follow that in relation to the administration of justice in our province for which our High Court has been established it has the jurisdiction of the Sudder Adalats of this province which were abolished, but not of the Supreme Court of Calcutta which was never a Court in this province. It may also be noted that no such general power is referred to in Section 113, Government of India Act, 1915. It cannot therefore be said that the Allahabad High Court, in addition to the powers expressly conferred upon it by the Letters Patent and the powers which the Courts situated within its territorial jurisdiction exercised at the time of their abolition, did also possess all the powers of the Supreme Courts of the presidency towns. Had that been the real intention the language of the two clauses would have been quite different. It is therefore very difficult to hold either that the Allahabad High Court has inherited the jurisdiction of the Supreme Court of Calcutta or that all the inherent powers of the Supreme Courts have been conferred upon it by statute.
87. But there can be no question that a High Court by virtue of its very constitution as the highest Court of Justice in the province established by Royal Charter must possess inherent jurisdiction over its own officers, particularly such as has been recognized to vest in the High Court of England, Advocates are undoubtedly officers of the Court, and unless the power is limited or regulated by statute the inherent disciplinary jurisdiction, similar to that exercised in England, would exist. That such inherent power can exist was recognized in the Pull Bench case of Hadi Husain v. Nasiruddin Haider : AIR1926All263 .
88. Any inherent power that may be possessed has been clearly saved by the Civil Procedure Code: vide Section 151 of Act 5 of 1908. Similarly the Government of India Act 1915, Section 106 leaves such jurisdiction, powers and authority untouched.
89. When the High Court for the N.W.P. was established in 1866 such inherent jurisdiction not having been taken away by anything in the Letters Patent, must be deemed to have existed so far at least as its extraordinary original civil jurisdiction was concerned. That was long before the Legal Practitioners Act (18 of 1879) was passed, which 'consolidated and amended' the law relating to legal practitioners.
90. But as regards the appellate jurisdiction there was a specific Clause 14 in the Letters Patent which somewhat restricted it. It said:
That with respect to the law or equity and rule of good conscience to be applied by the said High Court... to each case coming before it in the exercise of its appellate jurisdiction such law or equity and rule of good conscience shall be the law or equity and rule of good conscience which the Court in which the proceedings in such ease were originally instituted ought to have applied to such case.
91. This had the effect of preventing the High Court on its appellate side (civil) from exercising any jurisdiction which the Court from which the appeal came could not have exercised, unless of course by subsequent enactments, which can always modify the Letters Patent, such power was expressly conferred. It cannot be seriously denied that even an inherent power can be curtailed in this way.
92. Since the establishment of our High Court in 1866 the Subordinate Courts within our jurisdiction never possessed any inherent disciplinary jurisdiction over practitioners and this High Court, therefore, would not under its Letters Patent have an inherent power in a civil appeal to make an order, in the cause itself, which the inferior Court could not have made. But so far as the disciplinary jurisdiction of the High Court and power to suspend or dismiss an advocate for misconduct in a Separate summary proceeding were concerned, they undoubtedly existed. That jurisdiction was later on incorporated in the Legal Practitioners Act of 1879 and is now embodied in the Bar Councils Act (38 of 1926) so far as advocates are concerned. As shown by the preamble, the latter Act was intended not only to 'consolidate' but also to amend the law relating to legal practitioners.' As there was no statutory enactment existing previously and containing many of the provisions of the Bar Council's Act, consolidation of the law cannot mean merely a reduction into a systematic form of only the existing statute law. Section 10, Sub-clause (i) of the latter Act authorizes the High Court to 'reprimand,' 'suspend or remove from practice' any advocate found guilty of 'professional or other misconduct' and Sub-clause (2) which is imperative enjoins upon the High Court the duty to refer a complaint of misconduct for enquiry either to the Bar Council or to District Judge. It lays down the procedure which has to be followed in cases of such misconduct. The punishment is also prescribed and it may be reprimand, suspension or dismissal but not fine. The expression that the High Court 'may of its own motion so refer any case' to the Bar Council or the District Judge only emphasizes its power to act suo motu and cannot possibly mean that when acting of its own motion it need not so refer the case at all.
93. It has been suggested that in order to interpret the language of a section of a statute, it is permissible in India to refer to the statement of the objects and reasons which accompanied the draft bill when it was first introduced in the legislative body. We are unable to agree with this view. Unlike the preamble, the headings and the marginal notes, the statement of the objects and reasons for the bill is no part of the Act as passed by the legislature. The statement merely indicates the original object of the mover of the bill, who may be a private member and the language employed in the statement is never the subject of discussion in the council. The statement if not actually a part of the proceedings of the council or assembly, is very much on the same footing. It is also possible that the draft bill may by, radical amendments undergo such a change as to make certain phraseology of the statement wholly inapplicable to it. The motive or intention of the mover of a bill is not necessarily a true guide to the mind of the legislature as represented by the majority who passed the Act. Nor is it possible to say definitely that the original object has been retained unless the entire proceedings of the legislature are examined.
94. No doubt it used to be the practice in the Calcutta High Court to refer to the proceedings in the legislature which resulted in the passing of an Act, but this was strongly dissented from and the practice condemned by this High Court in Kadir Baksh v. Bhawani Prasad  14 All. 145. Edge, C.J., declined to look at the objects and reasons referred to by counsel and gave his reasons for such refusal (pp. 149-150). Straight, J., was:
glad that the learned Chief Justice had spoken with no uncertain voice on the subject.
95. The Calcutta practice was disapproved by their Lordships of the Privy Council in Administrator General of Bengal v. Prem Lal Mullick  22 Cal. 788(799). A learned Judge of the Bombay High Court in Queen,Empress v. Bal Gangadhar Tilak  22 Bom. 112 felt himself bound by this decision of the Privy Council and held that the contrary practice was wrong and could not be permitted any longer (p. 127). He also remarked that if he were to consider the question apart from authority he would agree entirely with the judgment of Edge, C.J., in Kadir v. Bhawani  14 All. 145. Ever since then it has been the invariable practice of this High Court not to refer to statements of objects and reasons and it would be a bad precedent to depart from such a settled practice, impliedly approved by the Privy Council at any rate so long as a contrary opinion has not been expressed by a higher authority. The Lahore High Court also follows this practice Raj Mal v. Harnam Chand A.I.R. 1928 Lah. 35. It has been imagined that in Urlam Kandukuri v. The Secretary of State A.I.R. 1917 P.C. 42 their Lordships of the Privy Council referred to the statement of objects and reasons. An examination of the case will show that it was not so. The object of an Act as gathered from its title or preamble should not be confused with the written statement of the objects and reasons accompanying the draft bill.
96. But even if we were to refer to the statement of the objects and the reasons for the Indian Bar Councils Act it would only strongly confirm our view based on the imperative language of Section 10 that:
the High Court should be bound before taking disciplinary action against an advocate to refer the case to the Bar Council for enquiry and report.
97. To illustrate how the original object mentioned in the statement may not be wholly carried out in the Act we may here point out that contrary to the idea underlying the statement that the High Court should be bound to refer the matter to the Bar Council in every case, the Act gives an alternative discretion to the High Court to refer it to the District Judge instead.
98. This enactment therefore now supersedes the inherent power of the High Court to exercise its disciplinary jurisdiction in cases of professional or other misconduct in a sumary manner and also limits the punishment that can be imposed. Proceedings against advocates arising out of all cases of misconduct (professional or otherwise) can now be taken only under the Bar Councils Act. And under Chap. 1 Rule 2 of our rules such a charge can be heard and decided by a Bench of three Judges, and not by a Bench of one or two Judges, which ordinarily hears a civil appeal.
99. That a power, authority or jurisdiction vested, in the High Court can be taken away by a legislative enactment passed by the Government of India is clear from the words of Clause 9, High Courts Act, quoted above, Clause 35 of our Letters Patent as well as from the Government of India Act Section 131(3) read with Sch. 5.
100. It follows that independently of the Bar Councils Act, the High Court does not any longer possess any inherent jurisdiction to punish an advocate for professional or other misconduct, or to adopt a procedure for inquiry other than that laid down in the Act or to pass an order for costs against him or impose a fine which are not contemplated by the Act.
101. It has next been suggested that because the original foundation of disciplinary jurisdiction in remote antiquity was the doctrine of contempt, and the statement of the objects and reasons shows that the power to deal with contempt of Court was left untouched by the Bar Councils Act, the High Court still possesses such jurisdiction. The language of the statement is inadmissible, but even without referring to that statement, we have not the least hesitation to say that the Bar Councils Act was never intended to and did not itself take away any inherent jurisdiction to punish for contempt of inferior Courts that might be possessed by the High Court. That such inherent jurisdiction existed before 1926 is clear from Hadi Husain v. Nasiruddin Hyder : AIR1926All263 .
102. But even this inherent power has now been 'defined' and 'limited' by the Contempt of Courts Act (12 of 1926). The High Court must exercise its jurisdiction 'in accordance with the same procedure and practice' as it exercises in respect of contempt of itself. It cannot take cognizance of a contempt which is an offence under the Penal Code, and the only punishment which it can impose under Section 3 is imprisonment or fine, and the latter is limited to two thousand rupees.
103. Now according to the practice of this High Court, cases of contempt of inferior Courts or those not committed in facie curiae' and particularly by advocates, are heard by a Bench of three Judges, and not by the ordinary Benches which dispose of civil or criminal appeals.
104. It is also obvious that a fine, which is permitted by the Act is not the same thing as an order for payment of costs against the advocate made in favour of the opposite party who can himself execute it through the civil Court and recover the amount. Such an executable decree is not contemplated by the Act. In the absence of any specific procedure, Section 5(2), Criminal P.C., would make the procedure laid down in Chap. 28 of that Code for the recovery of fines applicable and the amount would be realised by the Collector and would go to the Government Treasury and not into the pocket of the opposite party.
105. It is equally evident that when the amount is not to be paid to the opposite party, the scale of the amount should not be determined by the loss sustained by that other party, and it cannot possibly be always so for the amount can in no circumstances exceed two thousand rupees.
106. We are therefore clearly of opinion that the High Court has at least now no inherent jurisdiction to pass an order for costs against an advocate and in favour of the opposite party capable of execution by the latter on the supposed' ground of punishing him for a contempt of an inferior Court.
107. It now remains to consider whether there has been any other statutory enactment which confers any power on the High Court to order an advocate to pay costs of litigation and if so to what extent.
108. In the Civil Procedure Code (Act 8 of 1859) there were Sections 187 and 189 relating to costs of an action. Section 187 laid down that:
the judgment shall in all cases direct by whom the cost of each party are to be paid whether by himself or by another party, and whether in whole or in what part or proportion.
109. Section 189 also mentioned costs incurred by what parties and in what proportions.
110. Similarly in the Civil Procedure Code (Act 14 of 1882), Sections 219 and 220 used the expression:
direct by whom the costs of each party are to be paid, whether by himself or by any other party to the suit, and whether in whole or in what part or proportion.
111. It was accordingly held by the Bombay High Court in James Bevis v. C.A. Turner  7 Bom. 484(486), that costs could not be awarded against a person who was no 'party to the suit.' Now the legislature must be presumed to know the course of judicial decisions. It must therefore have been aware that the Courts had held that the use of the words 'party to the suit' in the Code limited the power to grant costs against only parties to the litigation.
112. In the Civil Procedure Code (Act 5 of 1908) Section 35 is quite differently worded. It says:
subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid.
113. The omission of the words 'party to the suit' is significant and must have been designedly made. The section as it now stands has undoubtedly a wider scope and authorizes a Court in appropriate cases to make an order as to costs against a person who is strictly speaking not a party to the litigation. It is noteworthy that in Section 35-A which has been subsequently added, and which relates to false or vexatious claims or defences knowingly made, the word 'party' has been re-introduced. Section 35 therefore stands in marked contrast with Section 35-A, which is not applicable to appeals.
114. We must, however, bear in mind the distinction between an order suspending an advocate on condition of restoration in case he pays costs or ordering him to pay costs on the penalty of suspension, and an unconditional order for payment of costs capable of execution by the attachment of his property. In the former cases the advocate has an option to submit to suspension, and the order is undoubtedly in the exercise of disciplinary jurisdiction. In the latter case the order is an order in the cause capable of being executed at the instance of the opposite party. The two are not exactly the same thing. Similarly, such an order for costs executable by the party in whose favour it is made is by no means a 'fine' for contempt of Court.
115. While exercising the power under Section 35, the subordinate Court is not to take into account any supposed misconduct of the advocate as such or intend to punish him for that. Such disciplinary jurisdiction does not vest in the inferior Courts at all. The legislature could not have intended to invest the subordinate Courts with summary disciplinary jurisdiction over advocates similar to that exercised by the Supreme Court in England over solicitors. Section 35 which can be availed of by subordinate Courts has nothing to do with misconduct of advocates. Similarly, cases of contempt of Court stand on a separate footing and are not within the scope of that section, as the inferior Courts have no jurisdiction to punish for contempt of Court in cases not falling within the Indian Penal Code. But under Section 35 a Court can order payment of costs by any person who is really responsible for those costs' i.e., has been the cause of those costs having been incurred, whether he is a party to the suit or not, and whether those costs have been directly occasioned by his commission or omission.
116. An obvious instance may be cited of a case where an advocate files a suit believing that he has authority from the plaintiff, but in fact and in law no such authority exists. If Section 35 were not applicable to such a case, the Court would have no power to make him pay the costs of the litigation when the absence of the authority is discovered, although those costs have been occasioned by him solely. That there is jurisdiction to make the pleader pay costs in such special circumstances can also be inferred from the fact that under Order 32, Rr. 2 and 15 the pleader who files a suit on behalf of a minor or lunatic without a next friend can be saddled with the costs. The High Court has power under Section 122, Civil P.C., to annul, alter or add to these rules, and such rules could not have been framed if Courts had not such jurisdiction under the body of the Code. Section 35 would obviously apply where in special circumstances it would be unfair to tax the litigant concerned with the costs for which the main responsibility lies on the advocate. It cannot be utilized by subordinate Courts for punishing advocates for supposed professional or other misconduct or for contempt of Court. It is also apparent from Section 35-A that costs of false or vexatious claims and defences, which in the case of an advocate having knowledge of it would undoubtedly amount to misconduct, have been expressly excluded.
117. This view is strengthened by a further consideration that Section 35 places the award of costs at the discretion of the Courts. When a Court finds an advocate guilty of misconduct or contempt this is an adjudication and not a mere exercise of discretion. Even in England it has been held that when a solicitor is ordered to pay costs the matter is not one of a mere discretion of the Court and an appeal lies from such an order, without leave, on the question whether there has or has not been misconduct or negligence In re, Bradford  15 Q.B.D. 635.
118. But the mere fact that the lower Court has omitted to pass any such order under Section 35 would not prevent the appellate Court from passing such an order, as in appeal it is undoubtedly seised of the whole case. The appellate Court would be competent to pass an order for costs in an appropriate case not only against the advocate who appears before it but also against those who appeared only in the original Court.
119. The words of Section 35 are wide enough to cover not only the costs, of the suit but all costs incidental to it and would undoubtedly extend to execution proceedings. But the costs contemplated by that section are the taxable costs in the suit or application and not any amount which may be considered as adequate compensation for the loss sustained by other party, or sufficient to reimburse him for all the expenses to which he has been put.
120. Question 2 referred to the Full Bench is:
If the High Court has such power, whether it should be exercised in the present case.
121. Before taking up the individual cases of the two advocates concerned, it seems desirable, in order to clear the ground, to consider to what extent, if any, a security deposited in Court can be attached.
122. When either immovable or moveable property is offered as security, the proprietary interest of the surety is not automatically extinguished. Merely a first charge is created on the security which will have to be available in the first instance for the purpose for which it has been offered. Although the depositor cannot defeat that purpose, his power of disposal over the security, subject to that charge will subsist. His interest in the surplus which may remain over is both transferable and attachable. Such an interest does not come within any of the exceptions enumerated in Section 6, T.P. Act. Nor is such security exempted from attachment under Section 60, Civil P.C.
123. Indeed, if the decree-holder wants to prevent the judgment-debtor from transferring or mortgaging his interest or realizing the surplus when it falls due, the only way open to him is to apply for attachment of the security. Without such attachment the judgment debtor can at his pleasure transfer his interest in surplus so as to place it wholly outside the reach of the decree-holder. It is obvious that it cannot be known beforehand what order for costs will be ultimately passed by the Privy Council. No one can foresee whether their Lordships will award costs in whole or in part or none at all or whether the amount of the costs awarded against the appellant would be more or less than the value of the security. Similarly, it cannot be ascertained definitely in advance whether the actual costs of printing will ultimately be less than the estimated costs, which generally have a margin of surplus, or whether there will be no surplus left.
124. If the decree-holder desires to be cautious, there is nothing in few to prevent him from applying to the Court for attaching the security so as to prevent the judgment-debtor from dealing with it personally any further. It is not only permissible to a decree holder to attach the security but he has a right to do so, subject always of course to the first charge created on it, and the Court has no discretion to refuse his prayer.
125. The only condition which the Court issuing an order for attachment must impose is that the previous charge created on the property is in no way to be affected. Order 21, Rule 52, is specially applicable to attachment of property in the custody of any Court or public officer. In such a case the attachment is made by a notice requesting that such property may be held subject to further orders. It is the duty of the Court to see that the attachment is issued in proper form. In support of the view that security for costs of a Privy Council appeal which may have been deposited in a High Court can be attached in this way, we would cite the case of Jagdish Narain Singh v. Mt. Ramtakal Kuar A.I.R. 1929 Pat. 97 at p. 482(of 8 Pat.).
126. We may also point out that there is no provision in the Civil P.C. for an immediate conversion into money of security deposited for costs and its immediate payment to the attaching creditor. Attachment of security does not necessarily mean either its actual seizure or its immediate conversion. In some cases cash security deposited for costs in a Privy Council case has been ordered by the High Court to be paid directly to satisfy the Privy Council decree for costs, but this practice does not seem to be in accordance with the provisions of Order 45, Rule 15(2), Civil P.C. which lays down that the High Court shall transmit the order to the Court below.
127. In taking up the case of each of the advocates separately we would emphasize that we do not consider it proper to examine any alleged or supposed 'professional or other misconduct' or any supposed 'contempt of Court,' which the trial Court could not inquire into. That would be an inquiry outside the scope of Section 35, Civil P.C., which alone, in our opinion, can apply to an order for costs to be made by an appellate Court in the cause itself. If there has been any misconduct of an advocate or any contempt of Court by him, the proper course is to proceed against him in the usual way and we do not desire to prejudice such an enquiry by saying anything on those points either in favour of or against any, of the advocates. We merely propose to consider whether in this case either the costs in the High Court or those in the Court below have been directly occasioned by the advocates engaged and whether they should be made liable to pay them under Section 35, Civil P.C.
128. The case of Mr. Pandey is to our minds perfectly simple. In the grounds of appeal which he had signed with his colleague it was urged firstly that the Court below was wrong in granting the judgment-debtor's objection and refusing to proceed against the said money; secondly, that the money deposited was not exempted from attachment but that the debtor himself had a right to withdraw the unexpended money any time he liked for his own use and give up the appeal, and thirdly that there was no equity in favour of the judgment-debtor. The only expression objected to is 'refusing to proceed against the said money.' That does not necessarily mean conversion of the security and immediate payment. Before the High Court Mr. Pandey in express terms confined his request to a claim to attach so much of the money as might eventually be found not to be required for the purposes for which it had been entrusted to the Court. That, in our opinion, was a perfectly good position to take.
129. Two of us were members of the Bench which admitted the appeal, and we can say with confidence that had we understood either from the grounds of appeal or the argument that the relief asked for was a conversion of the security into cash and its immediate payment to the decree-holder, and not a mere attachment of the surplus subject to the first charge for the purpose for which it had been deposited, we would never have admitted the appeal. With great respect, we would say that the appeal instead of being a frivolous or vexatious one should have been allowed in those terms. The Court has no discretion to refuse a prayer for such attachment merely because it considers that the motive, object or intention behind it is improper. To quote the words of a medieval Judge, Brain, C.J., (Y.B. 17 Edw. IV p. 1):
The thought of man ia not triable, for the Devil himself knoweth not the thought of man.
130. In the same way we do not wish to express any opinion whether the conduct of Mr. Nawal Kishore in the Court below, not so much in the matter of the drafting of the application for execution as in the way in which it was pressed before the Court, amounted to misconduct or contempt of Court. If it did, the proper course is to proceed against him under the Bar Councils Act or the Contempt of Courts Act. In considering whether he should be made to pay the costs under Section 35 we confine our attention to the sole question whether the written application filed by him was such as must be deemed to have been the causa of the costs being incurred.
131. So far as the facts given in the application for execution and the supplementary application were concerned they were perfectly correct and there was no concealment of any material particular. The Court was clearly informed that the security which the applicant wanted to attach had been deposited for the costs of the Privy Council appeal and the cash was for costs of printing and both ware in the custody of the High Court's officer. But the prayer asked for was in the following words:
It is therefore prayed that a parwana for attachment may be sent to the Registrar, High Court, and the amount of the decree may be as far as possible satisfied by attachment thereof.
132. The same words in the supplementary application have been translated in different language having the same meaning as follows:
May be caused to be attached by means of issuing an attachment parwana to the Registrar of the High Court and by attaching the same the decretal amount may be caused to be paid as much as possible.
133. We do not consider it within the scope of Section 35 to enquire into the motive, object or intention underlying this prayer, but we must say that the form of the prayer is almost a stereotyped one, namely 'realization of the decretal amount by attachment as much as possible.' Realisation of the decree can be either immediate or deferred. But it must be conceded that it would have been more proper to make the prayer absolutely definite and explicit so as to make it clear that a mere attachment was being sought for and not an immediate payment of the amount after the conversion of the security. Even assuming that the true interpretation of the prayer is that the applicant asked for immediate payment of the money by attachment of the security and its conversion, we would say that Section 35 would not apply to a case where the facts are correctly and fully stated in the plaint or application and only part of the relief or prayer asked for is such as cannot be granted. It is the duty of the plaintiff or the applicant to state the facts correctly and not conceal them and it is the duty of the Court to see to what relief the plaintiff or the applicant is entitled under the law. The mere fact that the plaintiff or the applicant has asked for more than he can get does not give to the Court a discretion to refuse to grant even that part of the relief to which he is entitled and to make his advocate pay the costs personally. Courts exist for doing justice and not for enforcing discipline against litigants.
134. When an application is made for execution of a simple money decree, it is not within the province of the Court executing the decree to start an enquiry into the motives of the decree-holder or his advocate behind the application. In the Kayastha Co. Ltd.v. Sita Ram Dubey : AIR1929All625 , a Full Bench of five Judges unanimously held that the question whether an application for execution was a mala fide one was wholly immaterial for purposes of saying limitation, that such a finding would not vitiate the application and that the Court should not enter into any such enquiry. If the relief claimed is wider than what the decree-holder is entitled to, the Court ought not to throw out the application, but should grant such relief as the law permits. To refuse to do this is likely to defeat justice and to tend to a multiplicity of applications and waste of the time of the Court. Courts of Justice have before them the paramount duty to do justice in each case. If the application was not in proper form, the decree-holder should have been asked to amend his application.
135. The intention or object behind a plaint or application is not per se punishable by mulcting the applicant or his advocate in costs. We have to see whether the means adopted resulted in certain costs being incurred which would not-otherwise have been incurred. In this, connexion it is to be noted that the judgment-debtor took up in his objection the extreme position that the security was not at all attachable and that the application should be dismissed in toto. The costs were incurred on account of the application and not on account of the argument which, though reprehensible, was subsequent to the objection. The mere advancing of an argument, howsoever puerile or absurd it may be, cannot bring the case undeir Section 35 as the Court can easily put a stop to it. In our opinion the application should not have been disallowed entirely,, though the Court might have punished the decree-holder by a suitable order as to costs. The filing of such an application did not make it a case in which under Section 35, Civil P. 0., costs should b(c) allowed to the judgment-debtor against the advocate concerned.
136. I take the first question to refer to the power of this Court to direct payment of costs by a legal practitioner as part of its order in an appeal heard by a single Judge or a Bench.
137. It is said that the High Court in England can, in the exercise of its summary jurisdiction make a solicitor pay costs occasioned by his misconduct or default. This may be conceded. It may also be conceded that a practitioner in India performs many of the functions which a Solicitor does in England. But it does not follow that this Court is possessed of the same jurisdiction over legal practitioners. The rules applicable to the legal profession in England are based on traditions many centuries old, and like those applicable to most subjects are not based on statute. The case is different in India, where powers of Courts, including the High Court are laid down by statute. It is not out of place to consider how far the power of a High Court to order a legal practitioner to pay costs is borne out or negatived by the course of legislation in regard to the disciplinary jurisdiction of the Courts, over the profession which existed long before this Court was established by the High Courts Act of 1861. It was originally subject to the disciplinary jurisdiction of District Courts Act 1 of 1846(an Act for amending the law regarding the appointment and remuneration of pleaders in the Courts of the East India Company) which repealed numerous regulations dealing with the subject was the first consolidating Act providing for qualifications and punishment of pleaders. Section 4 of that Act threw open the office of the pleader' to all who:
obtained a certificate in such manner as shall be directed by the Sudder Courts that he is of good character and duly qualified for the office,
138. and to Barristers:
of any of Her Majesty's Courts of justice in India... subject to all the rules in force in the said Sudder Courts applicable to pleaders.
139. Sections 10 to 12 empowered the Court of a Principal Sudder Amin or Sudder Amin or Munsiff to impose fine on pleaders (subject to an appeal to Zilla or City Judge', whose decision was final) whenever a pleader has conducted himself in such a manner as would have renderded himself liable to a fine if he had so conducted himself in the Court of a Zilla or City Judge. This Act was repealed by Act 20 of 1865 and it is significant that all the provisions authorizing the imposition of fines were omitted. The disciplinary jurisdiction was conferred on the High Courts whose powers in that behalf are defined in Section 4, which enacts that:
the High Court is hereby authorized and required, within six months after this Act shall take effect in the territories in which such Court exercises jurisdiction, to make rules for the qualification, admission and enrolment of proper persons to be pleaders and mukhtars of the Courts in such territories, for the fees to be paid for the examination, admission and enrolment of such persons and subject to the provisions hereinafter contained, for the suspension and dismissal of the pleaders and mukhtars, so admitted and enrolled.
140. It is quite clear that the power of Courts to impose fines in the exercise of disciplinary jurisdiction was deliberately withheld. This Act was extended to 'the Sudder Court of the North Western Provinces' by Act 9 of 1866 and became applicable to it with all the implications arising from repeal of the previous enactment. At about the same time the Letters Patent of this Court (dated 17th March 1866) empowered it:
to make rules for the qualification and admission of proper persons to be advocates, vakils and attorneys-at-law,
141. and to remove or to suspend from practice, on reasonable cause, the said advocates, vakils or attorneys. Only two forms of penalty are permitted for professional misconduct, viz, removal or suspension from practice. It is clear the High Court cannot extend its jurisdiction in that behalf by assuming an 'inherent power' any more than they can do so for inflicting imprisonment or other form of punishment for professional misconduct. I desire to emphasise this point, as it is suggested that the High Court can order a legal practitioner to pay costs in the exercise of an inherent power to punish contempt of itself or subordinate Courts by imposing a fine or imprisonment. That a legal practitioner guilty of contempt of Court may be punished like any other person in accordance with rules applicable to such cases and by adopting the procedure laid down for that class of cases cannot be disputed. The question before us is different viz., whether, in the exercise of the disciplinary jurisdiction possessed by this Court, a single Judge or a Bench of Judges exercising appellate powers, can, by a summary order passed in the particular case before it, impose a fine on an erring legal practitioner and award it as compensation to his client's adversary. It is quite clear to me that professional misconduct as such cannot be punished except by removal or suspension from practice or reprimand. If it is contempt of Court for which a legal practitioner is to be ordered to pay costs, the punishment need not be limited to the amount of costs, nor can the Court direct payment by him of costs occasioned by his act not amounting to contempt of Court. In this view this Court cannot direct a legal practitioner to pay costs in many cases in which the High Court in England can do so against a solicitor. Numerous instances illustrating cases in which solicitors have been directed to pay costs are mentioned in Halsbury's Laws of England, Vol. 26, pp. 832 and 833, paras. 1356 and 1357, which may be usefully quoted:
1356. The Court has power to order a solicitor to pay any costs occasioned by his misconduct or default in the course of legal proceedings to the person injured thereby or to indemnify his client in respect of his liability to pay them. Thus, a solicitor may be ordered to indemnify his client against costs where he defends an action to which there is to his knowledge no defence; where he appeals in his own interest, and not on behalf of his client; where he improperly continues proceedings after the lunacy of his client; where he fails to get an error in a decree of the Court corrected; and, generally, wherever costs have been incurred improperly and without reasonable cause, or though properly incurred, have proved fruitless to the client by reason of the solicitor's conduct. Where a solicitor institutes proceedings without authority, he may be ordered to pay the costs of his alleged client as between solicitor and client.
1357 A solicitor may be ordered to pay costs direct to the opposite party where he institutes or defends proceedings without authority from his client or on behalf of a non-existent client, or where he brings the wrong party before the Court: where he brings a speculative action without taking reasonable care to satisfy himself that the plaintiff has a fair prospect of success; where he issues a writ on behalf of a client resident abroad and gives his client's address as in England; where he proceeds after his client has been ordered to give security for costs and before security has been given; where he fails to attend proceedings in chambers, and the Judge does not think it expedient to proceed; where he fails to file an affidavit which has been used in the proceedings; where, on an account being taken in chambers, he acts unreasonably in adjourning items to the Judge; where the trial of the action cannot proceed owing to his neglect to attend or send a representative, or to deliver any papers necessary for the use of the Court which according to the practice ought to be delivered, where a case in which judgment has gone by default owing to the solicitor's negligence is restored to the list. Similarly a solicitor may be liable for costs where a fraudulent adjudication in bankruptcy is set aside, or where an order for the appointment of a receiver is obtained through suppression of the facts, even though innocent. Where prohibition is granted against proceedings in an inferior Court, the Court may order the costs to be paid by the plaintiff's solicitor provided that the rule has been moved for in that form and notice has been given to the solicitor so as to give him an opportunity of showing cause.
A solicitor who obtains a special jury for a client without means may be ordered to pay the jury fees personally.
142. It will be seen that in a number of cases it could not have been contempt of Court which was punished and that in the majority of cases the liability of the solicitors was not of a criminal nature but the object was to compensate his own client or his adversary for some act or omission, not necessarily amounting to contempt of Court, which occasioned loss to one or the other of them. It is true that the origin of the general disciplinary jurisdiction of the Supreme Court is the doctrine of contempt; but it was subsequently extended so as to embrace cases in which the element of contempt was not present: vide Halsbury's Laws of England, Vol. 26, pp. 828 and 829 paras. 1349 and 1359 quoted below:
1349. The Court possesses a disciplinary jurisdiction over solicitors, as being its officers, This jurisdiction, though it has been extended by statute, and by the rules of Supreme Court, is inherent in the Court and is based upon the doctrine of contempt. It is exerciseable summarily by writ of attachment or by committal.
1350. A solicitor is guilty of criminal contempt where he is guilty of conduct, whether in or out of Court, amounting to a contemptuous interference with the administration of Justice, as for instance, where he insolently defies the Judge in open Court, or uses improper language to the Judge, or to the solicitor of the opposite party, where he writes to the Press with reference to the merits of a pending case in which he is professionally interested or where he prepares special case for the opinion of the Court based upon a fictitious statement of facts. A solicitor who commences or defends legal proceedings on behalf of a client, whilst he himself is in prison, or who permits a solicitor in prison to use his name for the purpose is gulity of contempt.
143. It should be noted that this has no reference to solicitor's liability to pay costs.
In many cases the act done by the solicitor which calls for the intervention of the Court is not in itself a contempt: the Court in the first instance makes an order against the solicitor and it is his disobedience to the order which constitutes the actual contempt in particular, where the Court has ordered a solicitor to pay costs for misconduct as such, or to pay a sum of money in his character as an officer of the Court, the solicitor on making default, is liable to attachment and imprisonment for a period Sot exceeding one year. (Ibid, para. 1351 p. 829).
144. I have already referred to the successive enactments dealing with legal practitioners. An intention to codify the law on that subject is clearly discernable even in earlier Acts. Act 18 of 1879(Legal Practitioners Act) consolidated and defined all powers of a disciplinary character which it was intended the High Court should exercise over legal practitioners. The object of the Act, as noted in the very first line is 'to consolidate and amend the law relating to legal practitioners.' The preamble recites the expediency to 'amend and consolidate' such law. It should be noted that it does not merely consolidate previous enactments but the 'law' on the subject. Further it does not merely consolidate pre-existing law, but also 'amends' it, which taken with consolidation of it implies both addition to and derogation from the pre-existing law. It follows that it is a complete code in itself as regards the subject it deals with.
145. As observed by their Lordships of the Privy Council:
the object of codification of a particular branch of law is that on any point specifically dealt with by it such law should be sought for in the codified enactment and ascertained by interpreting the language used therein: Norindra Nath Sarcar v. Kamal Basine Dasi  23 1. A 18, at p. 26.
146. Similarly their Lordships observed in Gokul Mandar v. Padmanand Singh  29 I.A. 196 at p. 202 that:
the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.
147. That the Legal Practitioners Act is a complete code as regards pleaders, mukhtars and revenue agents will be apparent on a cursory glance at its provisions. The extent of rule making power of the High Court is defined (S. 6). Provisions for their qualifications, enrolment, dismissal and suspension are laid down. The procedure for the exercise of disciplinary power of the High Court is prescribed (Ss. 13 and 16). Rules relating to remuneration and penalty have been enacted (Cls. 6 and 7). As regards advocates and vakils, only their right to appear before subordinate Courts is declared. Matters relating to their enrolment and discipline are declared to be unaffected by the Act, being provided for in the Letters Patent and rules made by the High Court. Advocates and vakils of High Courts not established by royal charter are declared subject to rules made by such Courts with the previous sanction of the Local Government. It is noteworthy that an advocate enrolled in High Courts not established by royal charter cannot be dismissed or suspended except with the concurrence of the Local Government. Considering for the present, the case of pleaders alone nothing is left unprovided for. The conduct which can be taken notice of in the exercise of the disciplinary jurisdiction is described in the widest possible language. Section 13, gives power to the High Court to dismiss or suspend for 'any reasonable cause', which includes a case where a pleader has been guilty of misconduct, for which costs would be awarded against him in the cause itself if the Court had the power to do so. Disciplinary action in reference to such misconduct should be taken according to the procedure laid down by Act. It would be contrary to all canons of construction if summary power in the name of 'inherent power' is exercised in disregard of the machinery contemplated by the Act. If I am right in taking the view that the Legal Practitioners Act is an exhaustive enactment as regards pleaders, there is no room left for any inherent power in matters for which provision is expressly made by the Act. To concede power outside the Act would be to stultify its provisions.
148. If costs cannot be awarded against a pleader in a summary manner, it is inconceivable that they can be so awarded against an advocate or vakil. Section 8, Letters Patent of this High Court, clearly limited its powers to removing or suspending him from practice in a manner leaving little room for any inherent power. In any case, on the passing of Bar Councils Act, exactly the same considerations became applicable to advocates as I have mentioned above in respect of the Legal Practitioners Act and the pleaders. The Bar Councils Act, 38 of 1926 purports in the preamble to consolidate the law applicable to all legal practitioners. It amends the Legal Practitioners Act in some respects and provides exhaustively for the constitution of Bar Councils, for admission, enrolment, misconduct, with rules of procedure for enquiry, into it and punishment therefor. 8. 10 is mandatory, and the disciplinary power of the High Court is to be exercised only in a given manner and not summarily.
149. The power of the Supreme Court in England to award costs against a solicitor is now contained in the rules of the Supreme Court: see Order 65 Rr. 5 and 11 and Order 54, Rule 7. It is true that, even before the rules were framed, this power existed and was exercised. It is suggested that the principle under which the High Court in England can take a particular action against its officers, the solicitors, is of general application, and a High Court in India has similar inherent power to deal with its own officers as the legal practitioners should be considered to be. I have already shown the extent of statutory law in this country on the subject and its character as an exhaustive Code in itself. It should be borne in mind that no statutory law limiting the jurisdiction of the Supreme Court expressly or by implication has ever existed in England: see the following in Halsbury's Laws of England, Vol. 26 p. 844:
1374. The Court, in the exercise of its disciplinary jurisdiction, has power to strike a solicitor off the roll upon various grounds specified by statute and also upon the ground of misconduct. In the latter case the Court may in lieu of the striking of the solicitor off the roll suspend him from practice.
1375. The statutory ground for striking a solicitor off the roll are:
(1) That there is some defect in his article, service, admission or enrolment....
(2) That he has wilfully and knowingly acted as agent in any action or suit in any Court or order of bankruptcy for any person unqualified to act as a solicitor or has permitted or offered his name to be used by any unqualified person to enable him to undertake solicitor's business for his own benefit, or has sent in process to such unqualified person for the like purpose.
3. That he has been guilty of a corrupt practice in connexion with an election, whether parliamentary or municipal.
150. These are the only three grounds on which the statute provides for striking off a solicitors name. As regards grounds based on misconduct, there is no statutory provision. To quote again from the same book;
1376. Apart from statute a solicitor may be struck off the roll on the following grounds, namely:
(1) That he has been convicted of a criminal offence....
(2) That he has been guilty of professional misconduct....
(3) That he has been guilty of conduct showing him to be unfit to be a solicitor....
1317. The Court may, instead of striking the solicitor off the roll order him to be suspended from practice for a period stated in the order....
151. Side by side with this power, which emanates from the relationship of Court and its officers, there has existed the power of the Court to mulct a solicitor in costs, both having a common source and not being incompatible with each other. After the passing of the Judicature Act of 1873, rules were framed and now exist as regards both these powers. There is nothing in the rules themselves, and certainly in any statute, which may in any manner negative the existence of the power to award costs against solicitors. As is the case with most branches of the common law, which is said to be:
nothing else but the common custom of the realm (Hals. vol II p. 376).
no codification has ever been attempted as regards rules of discipline applicable to solicitors. The Court has always been at liberty to lay down such rules of practice in regard to its officers as local conditions required. The same considerations cannot be applied in India where the paramount authority in the matter of making laws has laid down categorically what disciplinary powers are and in what manner the Court can exercise. Another important difference that ought to carry weight is the difference in the constitution of Court and of the legal profession. This Court has no ordinary original jurisdiction and is mostly a Court of appeal, Legal practitioners who are not enrolled in this Court and over whom it cannot directly exercise any disciplinary power are entitled to act and plead before it and the Court subordinate to it. An advocate enrolled in any High Court in India established by royal charter or not may appear to act or plead in any Court subordinate to this High Court, Section 14(1)(b) Bar Councils Act, though he cannot be considered to be the officer of the High Court to which such Courts are subordinate. The question arises whether this Court can order them to pay costs in cases where, if the advocate concerned had been enrolled in this High Court, it had power so to order. If it is only on the general doctrine that a Court can take disciplinary action of that kind against its own officers that the foundation of the exercise of the power rests, the advocate enrolled in another High Court can do with impunity what an advocate enrolled in this High Court cannot. Anomalies of this character can hardly be found to result in England where there is only one High Court and all solicitors practising before it are enrolled in that Court. Again:
where the facts would otherwise establish a case of negligence, the solicitor may escape liability on the ground that he acted upon counsel's advice. Halsbury, Vol. 26, p. 7555.
152. If this rule be acted on in India the position will be curious. A legal practitioner is both a counsel and a solicitor. Any act done by him in his capacity as solicitor must be deemed to have been advised by himself as counsel. This and similar anomalies would disappear if it is recognized that a legal practitioner in India derives his position from a system peculiar to this country. He does not enjoy all the privileges of an English barrister and is not subject to all liabilities of a solicitor. His rights and obligations are determined by statutes and rules made thereunder. In England:
If a barrister acts honestly in the discharge of his duty he is not liable to an action by his client for negligence, or for want of skill, discretion, or diligence in respect of any act done in the conduct of a causa or in settling drafts, or in advising. If a barrister accepts a brief in a cause and receives payment of his fees, but does not attend at the trial, no action can be brought against him to recover either the fees, or damages for non-attendance. No action is maintainable against a barrister for unskilfully drawing pleadings or for compromising an action without the authority of the client. The law requires of counsel nothing but the honest discharge of his duty to the best of his judgment; and if he means what he does to be for the benefit of his client, he is not responsible to his client for anything he does. This immunity from action is not confined to litigation, but extends to all cases where the relation of counsel and client exists. (Halsbury Vol 2 p. 394)
153. None of these privileges can be claimed by a legal practitioner in India, who also performs all the functions of a counsel in England, for the obvious reason that there is nothing in Indian law which can give him the same privileges as barristers enjoy in England. If, on the one hand, a legal practitioner's claim to such privileges can be ruled out on the ground that the law to which he is subject does not provide for them, it is perfectly logical for him to insist that he cannot be saddled with any responsibilities of a solicitor in England, unless the Indian law clearly warrants it and the summary procedure employed to enforce it against solicitors.
154. Assuming that this Court has inherent power to order a legal practitioner to pay costs in a proper case, it should be borne in mind that the jurisdiction belongs to the Court. Individual Judges sitting singly or in Bench to here appeals cannot be considered to be the High Court. Under Section 27. Letters Patent of this Court, read with Section 13, High Courts Act 1861, the High Court:
may by its rules provide for the exercise by one or more Judges or by Division Courts constituted by two or more Judges of the said High Court and the original and appellate jurisdiction vested in such Court in such manner as may appear to such Court to be convenient for the due administration of justice. A single Judge or a Bench of two Judges sitting to hear civil appeals in which the question of payment of costs by a legal practitioner may arise have the power of the High Court to hear the appeals sat down for hearing before them and can exercise appellate civil jurisdiction of the High Court but cannot assume the disciplinary jurisdiction of the Court in the absence of a specific rule in that behalf under the rules of this Court only a Full Bench of at least three Judges nominated by the Chief Justice can exercise the disciplinary powers of the Court.
155. In England where the power to award costs undoubtedly exists, it is exercisable by the Court or Judge; see Order 65, Rule 5 and 11, Rules of the Supreme Court.
156. The provisions relating to costs generally are to be found in Section 35, Civil P.C., (1908) which is now couched in wider language than that employed in the corresponding provision of the older Code. It makes arguable that costs can be awarded against persons not being parties to the case. The provision is common to Subordinate Courts and the High Court. The former possess 'no disciplinary jurisdiction except so far that they can report to the High Court through the District Judge for action being taken against a legal practitioner. It follows that Section 35, Civil P.C., was not intended to confer any disciplinary jurisdiction on any Court, including the High Court which cannot acting under that section award costs against a legal practitioner for what amounts to misconduct or 'other reasonable cause' justifying the exercise of disciplinary jurisdiction. In my opinion, the costs can be awarded by any Court acting under Section 35, Civil P.C., against a legal practitioner as such.
157. It is, however, permissible for the Court to direct payment of costs by the legal practitioner under circumstances in which they would be payable by any other person not a party to the case. It is impossible to cite all possible instances in which costs may be awarded against persons not being parties to the case. If a person institutes a suit in the name of the plaintiff who is not the real plaintiff, finances the litigation and is himself a de facto plaintiff, expecting to reap the fruits of the litigation, or if he is instrumental in the institution of a suit or in the making of a defence on behalf of a person who from unsoundness of mind or other cause, could not or did not confer intelligent authority for the institution of the suit or the making of defence, costs may be awarded against such person, though he is not a party to the case. If such a person happens to be the legal practitioner for one of the parties to the case, costs may be awarded against him. The Court has no power to take disciplinary action under cover of the provisions of Section 35, Civil P.C. Acts done by a legal practitioner within the scope of his authority or on instructions given by his client are acts of his principal the client, and any costs occasioned by such act cannot be awarded under Section 35, Civil P.C., against him personally.
158. Like every other relief to be granted to a party to the case, the Court will not direct payment of costs against a stranger to the suit, unless it is made a question in the case. Ordinarily liability to pay costs will depend on the result of investigation in certain facts, and the person against whom costs are claimed should for that purpose be virtually made a party. If a legal practitioner appearing for one side or other is to be proceeded against for costs of the case for something done professionally an immense confusion is likely to arise. He may have in many cases, to discontinue appearing for his client, and a controversy having otherwise little to do with the merits of the case will have to be introduced as order for costs has to be embodied in the decree which must be in conformity with judgment: Order 20, Rule 6, Civil P.C.
159. The right to receive and the liability to pay costs under Section 35, Civil P.C., must be treated like any other question in the case, and no Court of appeal can ever be justified in making it a matter for consideration over the heads of the parties to the case, an action which has all the attributes of a disciplinary measury to which different considerations should apply. Under these circumstances I am of opinion that Section 35, Civil P.C., cannot be deemed to confer any power to award costs against a legal practitioner except to the extremely limited extent already indicated.
160. As regards the second question under reference, it is necessary to examine the contents of the application for execution of decree filed by Mr. Nand Kishore on behalf of the decree-holder and those of the petition of appeal filed in this Court by Mr. Pandey in the light of subsequent events. In the last column in which is to be mentioned the:
mode in which the assistance of the Court is required
the application states as follows:
In connexion with the application for execution of decree dated 13th September 1927 it is submitted that the amount due to the decree-holder is more than Rs. 7,500,000 and the amount attached in execution thereof is Rs. 23,575-2-9. Basdevanand Gir judgment-debtor has deposited postal cash certificates worth Rs. 4,006-12-0 as given below in his own name as security in Privy Council Appeal No. 28 of 1927 preferred in the Hon'ble High Court and a sum of Rs. 798-11-0 due to the judgment-debtor is deposited in the Hon'ble High Court on account of surplus charges for printing of papers in the said case. It is therefore prayed that a parwana for attachment may be sent to the Registrar, High Court, and the amount of decree may be, so far as possible, satisfied by attachment thereof.
161. It will be seen that the postal cash certificates of the face value of Rs.. 4,006-12-0 are clearly stated to be 'securrity' for costs and Rs. 798-11-0 as 'surplus' which can only mean money that is left after the printing charges are met. The prayer is that:
decree be satisfied by attachment so far as possible.
162. It is obvious that in execution of a decree only the right of the judgment-debtor can be attached. Once the prospective costs of the respondent to be incurred in the Privy Council appeal are secured on the postal certificates deposited with the Registrar, the right of the judgment-debtor, the depositor, in them is subject to a paramount charge which will vary from time to time and costs incurrred by the respondent after the attachment will be as much secured on the property as those incurred before it. The judgment-debtor cannot withdraw any part of it till the respondents' costs are ascertained and paid thereout or otherwise satisfied, and they cannot be ascertained till the appeal is finally decided. The judgment-debtor's right in that item of property is the right to recover the unexpected part of it. It may be a shadowy right or a substantial one. Much depends on what the respondent spends in prosecuting his case before the Privy Council. If he does not enter appearance and incurs little or no costs and the appeal is dismissed, the bulk of the security will be returnable to the judgment-debtor after the respondent's costs are eventually found to be nominal. It is also possible that the Privy Council may award no costs to the respondent, though successful. This being the judgment-debtor's right, the decree-holder, if he attaches it and he cannot attach any thing more, it is impossible for him to seize the amount forthwith and compel the judgment-debtor to file fresh security and again resort to the same procedure with incalculable hardship to the latter. Such a result is inconceivable to me, having regard to the nature of the property. The application for execution of decree itself does not betray any intention on the part of the applicant to seize forthwith the property sought to be attached regardless of the charge to which it is subject. All it prays for is attachment, which term means no more than that the Court should retain custody of the property to make it available for the satisfaction of the decree so far as the judgment-debtor's interest will make it possible. A reference to Order 21, Rule 52, Civil P.C., will show how the prayer for attachment, if granted, is to be given effect to. It provides that:
where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest, dividend becoming available thereon, may be held subject to the further orders of the Court from which the notice is issued: provided that, where such property is in the custody of a Court any question of title or priority arising between the decree-holder and any other person not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment attachment or otherwise, shall be determined by such Court.
163. The legal effect of attachment of a property when made is laid down in Section 64, Civil P.C., which enacts that:
where an attachment has been made any private transfer or delivery of the property attached or of any interest therein and any judgment to the judgment-debtor of any debt, dividend or other money contrary to such attachment, shall be void as against all claims enforceable under the attachment.
164. It follows that if the decree-holder's application for attachment in this case had been granted, only a notice would have been issued to the Registrar to hold the postal cash certificates, or rather the judgment-debtor's interest therein, subject to the orders of the Court executing the decree. In passing its orders consequent on attachment, if it correctly follows the law, it could only allow the attachment to continue till the respondent's costs in the Privy Council appeal, for which the property was given as security, are fully satisfied and a balance payable to the judgment debtor is found to exist which alone can be made available for satisfaction of the decree. If no such balance is eventually found, the attachment will prove fruitless. The decree-holder's prayer for attachment can be considered only as a prudent step which in certain contingencies may prove to be of advantage to him, preventing the judgment-debtor, at the same time to have access to it. At the first sight, there is nothing in the application for execution of decree in the grounds of appeal before this Court which can be construed as requesting the Court to do something illegal, even if the law could lend itself to such an attempt. By an application dated 10th December 1927, the judgment-debtor objected to the attachment of the postal certificates and the money deposited to meet the printing charges on the ground that they 'can under no circumstances be attached.' It is clear that the view he desired to press was that his right in the two properties was exempt from attachment. It is obvious that this contention was untenable.
165. It is evident from the Court's order, dated 4th February 1928, that the impression conveyed to its mind was that attachment, if allowed, would mean immediate withdrawal of the postal certificates and the cash in question. There is no doubt that the Court was not aware of the correct legal view, otherwise it would not have given as a ground of intervening equitably, that the judgment-debtor would be deprived of his inherent right of appeal. The omission of the vakils for both parties to remind the Court of the true significance of attachment was highly improper. It is also to be regretted that the learned Subordinate Judge did not take the trouble of consulting the Civil Procedure Code and acted on the erroneous impression as to what an attachment, if granted would signify.
166. Mr. Nand Kishore stated before the Full Bench that the object of the application was to make the judgment-debtor pay an amount equal to the value of the security, towards the satisfaction of the decree, in order to secure the postal certificates for the purposes of the Privy Council appeal. Taking this statement at its face value, it will make it appear that the prayer contained in the application was intended by him to be understood by the judgment-debtor at least, as asking for immediate seizure of the security otherwise the judgment-debtor could not be expected to pay. In furtherance of the desire to hoodwink the judgment debtor on the showing of Mr. Nand Kishore, I can call the attempt by no other name, it was necessary that actual seizure of the property by attachment should be demanded. It is difficult to imagine that a manoeuvre of the kind spoken of by Mr. Nand Kishore could possibly be believed by him to have the remotest chance of succeeding. Whether it was a manoeuvre of the character that he admits or that which is attributed on the other side viz., to 'burke' the Privy Council appeal, he cannot escape censure, if he improperly acted in furtherance of his client's device. It is probable that he attempted to mislead the Court and the judgment-debtor either by trying to make out what an attachment would mean, if granted or by attempting to induce the Court to order the seizure of the property so as to prejudice the judgment-debtor's appeal to Privy Council. In either case, his conduct was reprehensible. Whether it amounted to professional misconduct I refrain from expressing any opinion.
167. Mr. Pandey's case is altogether different. The petition of appeal which he signed and filed in this Court cannot be taken exception to on any ground. It prays for attachment of unexpended security. It objects to the refusal of the Subordinate Judge to 'proceed against' the security. This cannot be interpreted as praying for immediate seizure of it. It could be proceeded against, subject of course, to the charge existing on it. In his argument before the Court he took up the strictly legal and accurate position and prayed for attachment of such interest as the judgment-debtor had, giving his client the chance of obtaining any money which might be found to be payable to the judgment-debtor.
168. Our answer to the first question is that the Court has no power to order a legal practitioner to pay personally the cost of an application or suit except in cases to which Section 35, Civil P.C., can be made applicable.
169. The answer to the second question is in the negative.