1. The Vakil's fee originally was fixed at Rs. 118. The suit was for Rs. 5063 and was filed under Order 37, Civil P. C. Subsequent to the decree an application was made on behalf of the plaintiff to amend the decree by adding Rs. 118 more towards the lawyer's fee. Notice of that application was taken to the advocate for the defendant and as no counter statement was filed, on 7-7-1949 the Court amended the decree as prayed for by the plaintiff. Then subsequently on 20-7-1949 the Court suo motu vacated the order dated 7-7-1949 and posted the ease for hearing. On 26-7-1949 the learned Judge passed an order as follows:
'The vakil's fee allowed is correct in view ofRule 37 (f) redd with Rule 31 (b) proviso. Theorder passed on 7-7-1949 is not correct. Thispetition is dismissed.'
In my opinion, the learned Judge was in error. Rule 37 (f) of the Legal Practitioners Rules prescribes for suits under Order 37, Civil P. C. Where leave to defend has not been granted, the fee shall be half the fee prescribed under Rule 31 (b) subject to a maximum of Rs. 500. The reference to Rule 31 (D) must be taken as a reference to the fees allowed in ordinary cases and does not, in my opinion, have reference to the special class of cases dealt with in proviso 2, viz., to suits which are decided ex parte the defendant not entering appearance or having entered appearance not contesting. Obviously, in a suit filed under Order 37, in which leave to defend has not been granted there is no question of defendant entering appearance. He is in fact precluded from doing so. So the proviso would not apply and what would apply is the specific provision contained in Rule 37 (f). The order of the learned Judge is set aside and his order dated 7-7-1949 is restored.