1. This is a suit for the recovery of moneys paid to a Solicitor for and on behalf of the plaintiffs under an order of the Court. It arises; in this way. The plaintiffs employed t he defendant to act for them as their Solicitor in certain proceedings, the plaintiffs succeeded in the proceedings in the first instance, and as a condition for stay of execution a sum of Rs. 4,000 was ordered to be paid by the unsuccessful party to the defendant on his undertaking not to part with it until the hearing of the appeal was completed. The plaintiffs succeeded on the appeal, and this sum is still in the hands of the Solicitor, the present defendant.
2. The only issue which I have to consider in this case relates to certain fees amounting to Rs. 1,700 which were fees paid to Counsel, or alleged to have been paid to Counsel, by the defendant. Those fees, I find as a fact, were discussed between the defendant and the plaintiffs before Counsel were briefed or the fees paid. I am quite satisfied having heard the defendant in the box, and also one of the plaintiffs, that the defendant did tell the plaintiffs whom he was going to brief, that the plaintiffs were very anxious to employ certain eminent Counsel who practised before these Courts, and that he informed them that, if they chose to retain these eminent Counsel, he would have to pay a fee which would probably not be allowed on taxation. Nevertheless, they were very anxious, as is obvious from the correspondence, to have the case thoroughly considered, and they were prepared to employ these expensive Counsel. I think that they knew what they were going to do, and that they were advised by the defendant that if they did employ those Counsel, the whole of the fees which were to be paid to them would not be recovered on taxation. However, no written authority was signed by the plaintiffs to enable the defendant to brief those Counsel. The defendant said that he did not obtain the usual written authority because they were relations and friends and he trusted them to pay what was right and proper in the matter.
3. Now, when taxation took place before the master, the whole of the items in dispute (i.e., about Rs. 1,700) were included in the defendant's bill, and the whole of the sums in dispute were disavowed by the Taxing Master in the course of his taxation; no application has been made to Court to review the decision of the Mater, no reference has been made by the Master under rule g to the Court, and no application has been made by the defendant in respect of these costs independently of a review Under Rule 72 or a reference under Rule 9. The allocaturs were passed by the Master as regards one set of costs on the 26th May 1917 and as regards another set of costs on the 22nd January 1919, several years ago. The defendant says in this case: 'it is perfectly true that I did not obtain an order of the Master for payment of those costs; I could not have ,done so because the Master only had jurisdiction up to a certain amount, and these costs were in excess of the amount over which he had jurisdiction; but I could at any time, if I had chosen, have applied to the Court to grant me an order or at any rate to send back to the Master authority for the Master to grant such costs for Counsel as in the circumstances the Master thought right, even although they were above the amounts which the Master had jurisdiction under Rule 32 to grant; but I did not take such steps; I just sat on the money, but now that I have been asked to return the money and an action is brought to recover the money from me, I can, if I choose, ask the Court to hold that this money is a disbursement on behalf of the plaintiffs; and that these moneys ought not to be re-paid by me to the plaintiffs.' A case was cited to me, which is Sailendra Mohan Dutt v. Dharani Mohan Roy 69 Ind. Cas. 823 : 49 C. 618 : 26 C.W.N. 370 : (1922) A.I.R. (C) 402, and it appears from that authority that the Court on an application made to it, is not bound to find that a written document, or a written agreement, has been signed by the client authorising the Solicitor to brief Counsel at a fee winch is in excess of the amount allotted by the Master. The Court as I understand the judgment, held that although the rules as to a written document being necessary were applicable to the jurisdiction of the Master, they did not in any way bind or restrict the Judge in the exercise of the unfettered jurisdiction, which the Court held that he possessed to order such fees for Counsel to be allotted as he thought right Therefore, the defendant was justified in saving that m the event of an application having been made by him, he was not bound to prove before the Judge that he had received in respect of those costs an authority in writing signed by the client in that behalf. But in that case although the Court held that the Court has an unfettered discretion to grant such a sum or special fees for Counsel as it thinks fit it did not go the length of saying that in every case or it any time the Court will grant an application made by a solictior similar to the one which this Solicitor says he is entitled to make in this case, because if you find as in the case which we are considering now, that a Solicitor deludes in the items of costs which he carries in these sums for Counsel, he has submitted to the jurisdiction of the Taxing Master for the purpose of deciding what is a wooer sum for the Taxing Master to allot in respect of these accounts, and having done so he comes under Rule 72, Chapter XXXVI Rule 72 says that any party who is dissatisfied with the decision of the Taxing Officer as to any item or part of any item which may have been objected to may not later than seven days from the date of the decision or within such further time as the Taxing Officer or Judge may allow apply to a Judge in Chambers for an order to review the taxation as to the same items, and the Judge may thereupon make such order as to him may seem just, but the Taxing Master's decision shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid. Now in tins case all the items in question were carried on before the Taxing Master the Taxing Master considered them and in so far as the amount in question is concerned disallowed them. I do not find in the judgment which I have referred to that I am precluded in any way from folding that, where a Solicitor has elected to submit these items to the judgment of the Taxing Master, and that Taxing Master has given a decision as to them, that he cannot several years afterwards apply to the Court, to increase the sums allotted, because, were he at liberty to do so, it would altogether destroy the effect of Rule 72. If he could do so, then the last words of Rule 72 would not mean what they say. The Wards of Rule 72 provide that, apart from an application to the Court within seven days, or such further time as may be allowed by the Court, the order of the Taxing Officer shall be final and conclusive as to all matters which shall not have been objected to in matter aforesaid. In this case, the Master having struck out those items, there has been no appeal, no application to the Court under Rule 72 or under Rule 9 or in any other way, with the result that under Rule 72 the order of the Master has become final and conclusive as to those items.
4. Now, how does that affect this action which I am now considering? The defendant claims that he is entitled to retain these moneys as being moneys which he has disbursed on behalf of the plaintiffs, and he says: 'I may do so apart altogether from the rules of taxation because as an agent I have disbursed moneys for my principals at their request, and I am entitled to recoup myself from moneys in hand which otherwise I should have been obliged to return to the plaintiffs.' I do not think that that contention is a sound one, because, in my opinion, the effect of it would be that, provided that moneys were actually disbursed, it would act matter whether such moneys were to be allowed on taxation or not. In any case, on the general principle of agency, if they were disbursed by an agent on behalf of principal, the agent would be able to retain moneys of his principal sufficient to cover such disbursements. That is not, in my opinion, a course open to a Solicitor. A Solicitor is entitled to retain such moneys of his clients as, in accordance with the rule of Court, he, being an officer of the Court, is entitled to claim against them and, therefore, the defendant can only retain such sums against his clients in this action as under the rules of Court he could be justified in claiming. I have already held that he has no right at all in law to retain any of these sums after the Taxing Master has disallowed them without having made a successful application to the Court either to review, or on a reference or otherwise, to increase those sums. No such application has been made and, in my opinion, he is not entitled to claim any of those sums which he is seeking to retain. He admits that, if he is not entitled in law to claim these sums that he has no right whatever to keep them as against the plaintiffs, and the result will be that I hold that, as he has no right in law, having regard to the order of the Taxing Master, which is final and conclusive, to claim these sums as a Solicitor against his clients, he has no right to retain them as against the plaintiffs. Therefore, he will have to reimburse the plaintiffs the amount of these fees.
5. Under the circumstances there will be judgment for that sum, which is Rs. 1,700 and a further sum of Rs. 1,724 which the defendant has paid into Court, making altogether Rs. 3,424. But I do not propose to make a judgment with costs because it is dear that in this case the defendant, on the evidence before me, has in fact disbursed these moneys on behalf.
6. There will be judgment without costs