1. In this case an application is made by an attorney for an order for payment by the plaintiff and the defendants of taxed costs due to him by the second defendant Luchminarain. The application is for an order to be made by this Court in the exercise of its summary jurisdiction.
2. The facts shortly are these: The plaintiff filed a suit against the defendants to recover Rs. 9,861 on a bond which was alleged to have been executed by both the defendants in favour of the plaintiff. On the 18th May 1899, the plaintiff obtained an ex parte decree for the amount claimed, and on the 14th August he attached the stock-in-trade of the shop of Luchminarain, the second defendant, in Akyab. Thereupon Luchminarain came to Calcutta and instructed Babu N.C. Roy, his attorney, to take steps to set aside the decree on the grounds that no service had been effected on him of the summons; and that he was not a partner of Ramdeo and had not executed the bond in question. Certain proceedings were had through the attorney, and subsequently there were negotiations for a settlement of the claim in suit which were partly conducted by the attorney, and eventually a settlement was arrived at by the parties independently of the attorney, and the attorney now claims that the conduct of the plaintiff and the defendants has caused a breach of his lien for the costs due to him, and he also alleges that the settlement was not in fact bond fide, but was made by the parties collusively with the object of depriving him of his costs. The claim, so far as it rests on the alleged breach of lien, was not pressed, but the applicant relies on facts which it is contended disclosed fraudulent collusion between the plaintiff and the defendants to deprive the attorney of his costs by means of this pretended settlement, which is now set up.
3. As to the alleged settlement, the plaintiff, who alone opposed the application, tiled an affidavit, in which he denied certain of the facts asserted by the applicant, and alleged that there had been a settlement; he denied collusion or any intention on his part to deprive the applicant of the costs due to him by Luchminarain. It is difficult on the materials before me to come to any satisfactory conclusion as to the alleged settlement, or as to the collusion which has been charged.
4. The conduct of the parties in the proceedings leading up to the alleged settlement is certainly suspicious, but it is impossible on these materials to say what the exact nature of the alleged settlement was, or that it was brought about by the plaintiff collusively with the defendants with the intention of depriving the attorney of his costs.
5. I think that, even supposing I hud the power to exercise the summary jurisdiction of this Court in favour of the applicant, this is not a case in which it ought to be exercised. I ought to say, however, that in my opinion in cases of this kind, where charges of collusion and fraud are made, it is inconvenient that the Court should be asked to dispose of the issues on affidavits, and I feel bound to add that, with all respect to the learned Judge who decided the case of Khetter Kristo Mitter v. Kally Prosonno Ghose (1898) I.L.R., 25 Cal., 887, I see no good reason for departing from what has undoubtedly been the rule of this Court, not to interfere summarily between attorneys and their clients as regards claims for costs by the former.
6. This rule has been laid down and explained in the case of Domun v. Emam Ally (1881) I.L.R., 7 Cal., 401. See also the case of Mahommed Zohuruddeen v. Mahommed Noorooddeen (1893) I.L.E., 21 Cal., 85.. The application is therefore refused, but without costs. The applicant to have liberty to establish his claim, if so advised, by regular suit.