1. This appeal relates solely to the question of costs. An application on behalf of a minor for Letters of Administration to the estate of his father was filed by his guardian, the Central Nazir of the District Judge's Court. Objections were taken by Magan Lai, the appellant before us, and after contest the application was granted on the 18th of May 1917, and the objections were dismissed with costs. Rupees 389 8-0 were allowed in the decree for costs, which included Rs. 370 as Pleader's fee, and this was charged against the other side, the objector Mangal Lal. An application was made to the lower Court by the objector, defendant-appellant, to amend the decree by expunging the sum of Rs. 370, Pleader's fee, on the ground that, under the rules framed by the High Court, it was inadmissible, inasmuch as the payment had been made not only after the first hearing but even after the decision of the case. The learned District Judge disallowed this application, hence this appeal. It is argued before us that the lower Court ought not to have included the sum of Rs. 370 in the costs against the objector. The facts are as follows: On the 2nd of May 1917, that is, four days after the decision of the application for Letters of Administration, the Nazir applied to the Court for an extension of time to allow him to raise money to pay the Court fees and the Pleader's fee. On the 11th of June a mortgage of some of the minor's property was sanctioned by the learned District Judge and a certificate was filed on the 15th of June 1917 showing that a sum of Rs. 370 had been paid to the Pleader on the 12th of June 1917. We find on referring to the record that on the 22nd of May 1917 the learned district Judge recorded the following order--The Nazir is permitted to deposit stamps and pay Vakil's fee and file a certificate. I shall be prepared to receive an application to allow the costs against defendants favourably.' There is another order, dated the 15th of June 1917, which runs as follows: Let the Pleader's fee received (? sic) as costs. It was certified in time because the plaintiff is a minor and the Nazir of this Court is his guardian and he could not pay the Pleader's fee until he raised some money by mortgage.' It seems to us that, however, hard the case may seem, it was beyond the jurisdiction of the learned Judge to allow this sum of Rs. 370, to be entered in the decree as costs. The rule applicable is Rule 1 in Chapter XXI of the General Rules of 1911 for Civil Courts subordinate to this Court. That rule lays down that a Pleader's fee can only be inclnded in a decree in the costs when the Judge is satisfied that the fee was paid before the commencement of the hearing and that a certificate as required by the rule certifying receipt by the Pleader of his fee had been delivered to the Muhsarim. There is a proviso to the rule which allows the Presiding Officer for valid reasons to be recorded by him to accept a certificate of fee filed after the time mentioned above.
2. This rule has been considered by this Court in Bank of Bengal,Cawnpjre v. Kalka Das 9 Ind. Cas. 422 : 8 A.L.J. 109 : 33 A. 374, where it was pointed out that the proviso to the rule only gives a Court a discretion to accepts certificate for fees filed after the commencement of the hearing, but it gives him no discretion as to allowance of a fee, on taxation, which was not paid on or before the first hearing.' That was a decision by a Divisional Bench of this Court and exactly covers the case. Under these circumstances, we must allow the appeal and amend the decree of the Court below by striking out the sum of Rs. 370 as Pleader's fee from the memorandum of costs in the decree incurred on behalf of the applicant-respondent. We make no order as to costs in this appeal.