1. In this application for review of taxation of costs, Mr. B.C. Dutt appearing for the defendants has not taken, before me, any exception to any specific item in the Bill of costs but has rested himself on two broad questions of principle which I shall presently formulate. In order, however, to appreciate the questions raised before me it is necessary to state the following facts.
2. This was a suit on a mortgage in which the total sum due for principal did not exceed Rs. 4000. It was instituted on 24-3-1939. At the date of the institution of this suit, Rules 100 and 105 of ch. 36 of the Rules of this Court provided special scales of taxation of costs of a mortgage suit in ?which the total sum due for principal did not exceed Rs. 2500. Therefore at the date of the institution of this suit, Rules 100 and 105 did not apply to the costs of this suit. During the pendency of this suit, the heading under which Rules 100 and 105 were grouped and those rules were amended and the amended heading and the amended Rules 100 and 105 came into force on and from 15-11-1939. They now apply to mortgage suits in which the total sum clue for principal does not exceed Rs. 4000.
3. After various proceedings, the usual preliminary mortgage decree was passed in this suit on 9-2-1940. This decree awarded costs to the plaintiff mortgagee as between attorney and client as of a defended suit. No direction was given as to the costs being taxed on the special scale under the amended rules which had come into operation. The Registrar made his report on 3-12-1940 certifying that on 9-8-1941 the sum of Rs. 5909-11-9 would be payable to the plaintiff under the decree.
4. The Bengal Money Lenders Act having come into operation in the meantime the defendants on 8th August 1941 applied for relief under that Act. Eventually the preliminary decree dated 9th February 1940 was reopened and a fresh preliminary decree was passed in this suit on 26th November 1941 providing for payment of the amount due and costs in certain instalments. This new decree also directed the defendants to pay to the plaintiff the ousts of that application and also all costs previously awarded to the plaintiff under the re-opened decree and other orders previously made.
5. The final mortgage decree was passed on 20th July 1942. The mortgaged property was sold by the Registrar on 22nd May 1943 and the sale was confirmed on 6th July 1943. On 15th September 1943 the plaintiff applied for payment out of Rs. 5496-14-0 in full satisfaction of the principal and interest due to him and also asked for an order for payment of all subsequent costs and for payment of the costs on production of allocature after taxation. On 20th September 1943 order was made for payment out of Rs. 5496-14-0 and the rest of the application was adjourned until the reopening of the Court after the annual vacation.
6. On 13th November 1943 the plaintiff's solicitor lodged for taxation his bill of costs up to the new preliminary decree dated 26th November 1941. The adjourned application for subsequent costs came up for hearing before Sen J. and by his order made on 24th November 1943 His Lordship directed that the costs subsequent to the decree dated 26th November 1941, be taxed under the special scale prescribed in Rule 100 of Ch. 36 of the Rules of this Court. No bill of costs for these subsequent costs have yet been lodged.
7. The bill of costs up to the decree dated 26th November 1941 was taxed by the Assistant Taxing Officer on 25th January 1944, and the defendants on the next day carried in the Bill before the Taxing officer by way of exception. Before the Taxing Officer, besides exceptions to specific items, general exceptions were taken on two broad lines as follows:
Items Nos. 1 to 645.
(1) This is a mortgage suit principal not exceeding Rs. 4000. The visual preliminary and final decrees for sale of mortgaged property were passed and the property was sold by the Registrar and the sale proceeds withdrawn by the plaintiff under order of the Court. The entire costs have not been included in this bill. This is a part bill only. This bill cannot be taxed unless and until the whole costs are included in the bill.
Items Nos. 132 to 645.
(2) The new rule came into operation on 15th November 1939. The plaintiff's attorneys ought to have got the suit marked as a mortgage suit principal not exceeding Rs. 4000 after 15th November 1939. The plaintiff having neglected in not getting the suit so marked the costs have been increased. All costs subsequent to 15th November 1939 should be taxed under Rules 100 and 102, Chap. 36. The Taxing Officer has no power under the said rules to increase the fees and charges.
8. The learned Taxing Officer gave his decision in the following words:
I have read the decree of 9th February 1940 in which it was provided that the costs of the plaintiff be taxed as between attorney and clients as of a defended suit up to the time when this suit was transferred to the undefended list. To me this means that the Court has decided to allow the plaintiff costs as in a defended suit and that such costs have been allowed under Rule 102. The subsequent order of 24th November 1943 provides for costs to be taxed under Rule 100 of Ch. 36. The combined effect of the decree and order in my opinion justify the decision of the Taxing Officer and I will not interfere on that ground.
The learned Taxing Officer did not specifically deal with the first point. I am not clear whether this was due to oversight or to its not being seriously pressed before him.
9. Mr. B.C. Dutt has insisted on both points before me. On the first point he has relied on the observations of Lort-Williams J. in Kedarnath v. Joharrnull : AIR1930Cal465 and Daulat Raj v. Kali Charan : AIR1933Cal19 . The observations made in the first mentioned case were obiter dicta and in any case do not touch the point now under consideration. They simply say that in the case of orders for costs made by the Court of appeal during the progress of the suit, such costs may be taxed forthwith and execution levied therefor but in the case of orders for costs made on interlocutory applications by the trial Court, such costs must await taxation at the final termination of the suit. These observations were made in order to explain the actual decision namely that if parties by their terms of settlement in the suit intend to give the go-by to the order for costs passed by the appeal Court on appeal from an interlocutory order, they should expressly say so, for the costs awarded by the appeal Court were distinct from the costs of the suit. The question whether there should be one complete bill for all costs under all orders for costs did not arise in that ease at all. In the second mentioned case a party who had obtained an order for costs on an interlocutory application had his bill taxed and proceeded to execute the order during the pendency of the suit. The party liable to pay those costs applied for stay of execution until the disposal of the suit. After referring to the English practice and the cases thereon and the rules of this Court and pointing out that under Rule 20 of Ch. 36 of our rules, a person to whom costs of an interlocutory application have been awarded has a choice between proceeding with taxation and execution at once and leaving both taxation and execution until after the final determination of the suit. Lort-Williams J. at pp. 1359-1360 observed as follows:
In my view, it is convenient that some settled rule of practice should be laid down, and I propose to adhere to the rule laid down by me in the case to which I have referred. Costs in a suit ought to be set off between the parties, and, in my opinion, it is wrong that either a plaintiff or a defendant, who may be a man of straw, should be paid costs upon interlocutory applications, and should execute orders for costs forthwith made upon interlocutory applications, when it may be that the party will lose the suit in the end, and it will be found that he has nothing with which to meet the final order for costs which may be made against him.
I wish, therefore, to ask the office of this Court, to note that when any interlocutory orders in suits are made by me they are not to be taxed or executed before the final determination of the suit unless a special direction is given to that effect. In my opinion, except in special cases, there ought to be only one taxation in a suit.
This matter comes before me upon an application for an injunction, which is a matter of discretion, and, therefore, apart from the question as to what is the correct rule, I have power to make the order, and, upon the facts of this case, I think it ought to be made.
10. Although I respectfully agree with His Lordship that the course suggested by him is equitable for reasons stated by him, I have with due respect grave doubts whether it is permissible for a Judge to supersede a rule of the Court and set up a practice, based on his notions of equity, which will deprive a litigant of the rights expressly and definitely given to him by a rule of the Court. If any practice be inequitable it is for the rule making authority to abrogate the practice and introduce what it may consider to be a better and more equitable practice. It is interesting to note that this rule along with other rules was amended with effect from 15-11-1939 but no material alteration has been made in this rule in spite of the observations of Lort-Williams J. Further I do not see how that case can help the defendants in the present case. Here there is no question of any set-off, for the defendants have to pay the costs all along the line and the reason put forward in that case has no application in the facts of this case. That case does not say that there must be one bill in which all costs under all orders must be included. The English eases laying down that a solicitor's bill of costs must include all items of costs as between party and party and also as between attorney and client which I discussed in my judgment in Kamala Ranjan Roy v. Bipin Behari reported in : AIR1945Cal34 have no application to this ease. In my opinion there is no substance in the first point urged by Mr. Dutt.
11. As regards the second point I am in agreement with the learned Taxing Officer. I do not accept Mr. Das Gupta's extreme view that once a suit is filed1 the costs of that suit must be regulated by the rules of taxation then in force. I know of no authority which lays down that litigants have such a vested right in the rules of taxation that a subsequent amendment of the rules will not affect such right even in respect of costs incurred after the amendment. I, however, think that the terms of the decree for costs in this case amount to the Judge allowing costs on a higher scale, namely, as between attorney and client as of an ordinary defended suit which he can under Rule 100 and also constitute a special direction under Rule 102 as held by the learned Taxing Officer. The subsequent order of Sen J. dated 24-11-1943 also makes it clear that costs up to the decree of 26-11.1941 were not intended to be taxed under Rule 100 and that Sen J. made a distinction between the costs up to 26-11-1941 and the costs after that date. In this view of the matter I hold that the decision of the learned Taxing Officer on this question involving principle was right. The result, therefore, is that this application must be dismissed with costs as of an ordinary motion.