1. The applicant had a decree against Jugul Kishore and in execution of that decree put certain property to sale. Jugul Kishore obtained stay of execution by filing two hypothecation bonds by way of security. Eventually the applicant instituted a suit on the basis of these bonds against Jugul Kishore and his wife Musammat Dularna Bibi, The latter was impleaded because some other property had been gifted to her by Jugul Kishore and she and Jugul Kishore then, as joint zamindars had executed permanent leases jointly in respect of certain lands pertaining to the property mortgaged as well as other property. The suit was decreed as against Jugal Kishore but not against Musammat Dularna Bibi and the latter was awarded her costs. She put in a certificate that she had paid a sum of Rs. 500 to a Barrister in Gorakhpur. There was originally some mistake in the decree or some alleged mistake, and on an application for amendment, the question arose what sum should be allowed to Musammat Dularna by way of costs. In this connection the applicant raised the objection that this sum of Rs. 500 had never been paid by Musammat Dularna Bibi to the Barrister. The learned Judge said that he did not think he could make an enquiry and that he had found a certificate on the record.
2. I do not for a moment say that the learned Judge would not have been justified in accepting the certificate especially as it appears that it was not contradicted by any affidavit by the applicant or any one on his behalf, but I am somewhat doubtful from the wording of the order whether the learned Judge realised that he had to satisfy himself that the fee had been paid before the amount was included in the decree. Rule 1 of Chap. XXI of the General Rules (Civil) of this Court is as follows:
In drawing up a decree or order no fee to any legal practitioner not appearing for the Crown or Government or the Court of Wards as a party shall be allowed on taxation between party and party or shall be included in any decree or order... unless the Munsarim, or, on an application to the Judge, the Judge is satisfied that the fee was paid to such legal practitioner before the commencement of the argument at the conclusion of the evidence....
3. If an application is made to the Judge, the Judge has to be satisfied that the payment was made. He may of course accept a certificate given by the legal practitioner if it is unrebutted or in any case if he believes it in preference to any other evidence which may be before him, but the question is that he must be satisfied that the payment was made. In the present case I am not sure that the learned Judge directed his attention to this matter at all. That being so, I set aside his order and direct that he shall direct his attention to this question and pass an order according as to whether he is satisfied that the payment was made or not. The costs in this application will abide the result.