1. This is an application for the revision of an order passed by the learned Additional Subordinate Judge of Agra, on the 9th of January 1926, by which be ordered a correction of a decree passed by himself. It appeals that the opposite party brought a suit for sale against two defendants, Bhajan Lal, a minor, and Trilokinath, also a minor, on foot of a mortgage-bond alleged to have been executed by the father of Triloki Nath who was a brother of Bhajan Lal. Both Triloki Nath and Bhajan Lal contested the suit. By order dated the 21st of August 1925,the 9th of September was fixed for final disposal of the case.
2. On that date Bhajan Lal filed his written statement, issues were framed and evidence was recorded. The order-sheet establishes that on that; day the plaintiff stated that be would not enforce his claim against half the property belonging to Bhajan Lal. The Court accordingly, dismissed the suit against Bhajan Lal and exempted his half-share in the mortgaged property from the decree. A decree was prepared and the entire pleader's fee, as calculated on the full amount of the claim, was allowed to Bhajan Lal. His pleader had filed a certificate of fees for the amount of Rs. 200 and the whole of it, being less than the amount payable with respect to the claim, was allowed. Subsequently the plaintiff made an application for correction of the decree and the Munsarim reported to the Subordinate Judge that the defendant having been exempted, only one-half of the fee should have been awarded. The Judge accepted the correctness of the report, with the result that under his orders, the applicant was allowed only Rs. 100 on account of pleader's fees.
3. In this Court the counsel for Bhajan Lal contends that the suit was decided after contest and therefore the full fee of Rs. 200 was payable. On the other hand it is contended on behalf of the plaintiff-respondent that the case is covered by the principle of Rule 22, Ch. 21 of the General Rules framed by the High Court for the guidance of subordinate Courts.
4. It is clear that Rule 22 does not apply. The question is whether Rule 21 which says that the fee will be calculated at 5 per cent where such suits are decided on the merits after contest applies. That there was a contest there can be no doubt. The question is whether the suit was decided on the merits. When the plaintiff withdrew his claim against the Defendant No. 1 the Court was relieved from responsibility of deciding the case.
5. In this sense, the case was not decided on the merits. But it is perfectly clear that the suit was decided on a day which was fixed for contest, that the full fee had already been paid by the applicant to his counsel and that the applicant was ready to contest the plaintiff's claim. In the circumstances, there can be no justification for cutting down a fee, which the applicant properly paid to his counsel. The applicant had no notice that the claim against him would not be pressed and that he was not called upon to pay any fee or the full fee to his counsel.
6. I think that the learned Judge was wrong in amending the decree. The application is allowed and it is hereby ordered that the decree of the lower Court be re-amended by allowing the full fee of Rs. 200 to the applicant. The respondent must pay the costs in this Court including counsel's fees on the higher scale.