1. This appeal arises out of an application which in the form in which it was pressed in the lower Court reflects nothing but discredit on the persona who made it and the legal advisers through whom it was made. The application is of a nature that makes it desirable to consider whether the Courts have not inherent power in suitable cases to make Counsel pay the costs of the litigation.
2. One Mahant Shantanand Gir has got a decree against Mahant Basudevanand Gir. The latter has appealed to the Privy Council and has had to deposit in this Court a sum of Rs. 4,005 12-0 for the costs of the Privy Council and for printing charges. The decree-holder has now applied to attach this amount in execution of the decree which he has obtained from the High Court. It is manifest from the trend of the argument before the lower Court, as it appears from the judgment, that the idea underlying this application was that the decree-holder would attach and obtain the amount in question and would then claim to be in a position to contend that the judgment-debtor Basudevanand Gir had not in deposit the moneys he was required to deposit and to ask that the Privy Council appeal should be, therefore, dismissed. The Subordinate Judge has described this manoeuvre as 'not charitable'. We should unhesitatingly describe it as grossly improper and an offence to the Court. This manoeuvre of the decree-holder and his legal advisers in the Court bellow amounts to their saying to the Courts: 'You have told the judgment-debtor to pay into the Court certain money which the Court will hold on his behalf on trust for a certain purpose. I ask the Court forcibly to convert that money, paid and held on that understanding, to a different purpose for toy benefit in breach of the faith put in the Court by the man who deposited the money'. In this Court the demand of the decree-holder has in the grounds of appeal been stated in all its nakedness. The first ground urges that the lower Court was wrong in not proceeding 'against the said money'. The second ground urges that the said money is 'not exempted from attachment' and that the 'judgment-debtor himself has a right to withdraw the unexpended money any time he likes for his own use and give up the appeal'. The third ground urges that 'there is no equity in favour of the judgment-debtor' because he has throughout resisted the decree-holder. 'No equity' in favour of a man who has deposited money in trust that the trustee (the Court) should not commit a breach of trust. Because the man who deposited the money in trust can withdraw it and abandon his appeal, therefore the decree-holder can ask the Court to commit a breach of trust by handing over the money to the decree-holder and thus for the benefit of the decree-holder force the judgment-debtor to abandon his appeal.
3. When Counsel who signed these grounds came to state his case to this Court, he had, no doubt, realised the impropriety of them and very properly made no endeavour to support them, but reduced 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.
4. This is something quite different from the actual application made to the lower Court and quite different from the appeal to this Court. Further in this form the application has no shadow of substance. Counsel does not put to us any figures to suggest that there is any likelihood of there being any surplus and the application, even if it had been made in this form, would have been wholly premature.
5. We would dismiss the appeal.
6. As to the question of costs. Let Mr. A.P. Pande be informed that he should be prepared on a date to be fixed by the Hon'ble the Chief Justice 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.
7. Let a similar notice be issued immediately to the legal practitioner who filed the application in execution, which was under appeal to this Court. After hearing the questions involved in the above notices, a final order will be passed.