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1958 DIGILAW 129 (ALL)

Mohd. Naimat Ullah Khan v. State of Uttar Pradesh

1958-04-22

B.DAYAL, R.DAYAL

body1958
JUDGMENT R. Dayal, J. - The following question has been referred to this Bench for decision: "In a case where full legal fee has been taxed in favour of a party in the decree disposing of the suit itself, if a review application is made by the other side and is dismissed afterwards and the successful party in the suit engages the same lawyer to contest the review application also, can a fresh taxation on account of the fees of the lawyer be made in favour of the successful party for the review application. 2. Mr. Kazmi, Learned Counsel for the applicant contends that the maximum taxable amount on account of legal practitioner's fee had been taxed in the original decree and that, therefore, in view of Rule 583, General Rules (Civil), no further sum on account of the legal practitioner's fee could be taxed in the formal order in the review application. In support of this contention reliance is placed for the applicant on Rule 583, General Rules (Civil). The second paragraph of Rule 583 and illustration I to this rule are relevant for our purpose. Rule 583 is as follows: "The party entitled under a decree or an order to be paid costs in a suit or an appeal or a proceeding, by any other party shall not be entitled to any larger allowance for legal practitioners fee in the suit, including all proceedings in the execution of the decree or order than the fee hereinafter provided for in Rules 585 to 600, inclusive which may be applicable to the case." 3. The first illustration is: "A plaintiff who has obtained a decree in a contested suit in which the claim is Rs. 5,000/- and who has obtained a decree or an order for costs and has filed the requisite certificates, shall not be entitled to a larger allowance on taxation in respect of legal practitioner's fees in the suit and in all proceedings therein, including the execution of the original decree, than Rs. 375." 4. 5,000/- and who has obtained a decree or an order for costs and has filed the requisite certificates, shall not be entitled to a larger allowance on taxation in respect of legal practitioner's fees in the suit and in all proceedings therein, including the execution of the original decree, than Rs. 375." 4. It is clear to us that what paragraph 2 of Rule 583 provides is that whenever a party is entitled to costs under a decree or an order in a suit or an appeal or a proceeding, it will not be entitled in each case, i.e. in the case of a suit, in the case of an appeal and in the case of any other proceeding, to get a larger amount for legal practitioner's fee than what has been provided in the various rules, though the expression "appeal or other proceedings" are not repeated in the latter part of the paragraph, which just mentions about fees in the suit including all proceedings in the execution of a decree or an order. Surely this paragraph did not mean, and it is not contended for the applicant that it meant, that no separate costs on account of legal practitioner's fees are to be taxed in the costs of an appeal or other proceedings in case the full legal fee had been once taxed in the decree in the original suit. The second illustration to this paragraph makes it clear. It is obvious, therefore, that separate amount can be taxed for the legal practitioner's fees when costs are awarded in the different proceedings, namely, in the suit, in an appeal or in other proceedings. The costs to be awarded in each case is not to exceed the amount according to the various rules. 5. The first illustration does mention that the plaintiff will not be entitled to more than Rs. 375/- in respect of legal practitioner's fee in the suit and in all proceedings therein including the decree in the original suit. The expression "and in all proceedings therein" does not find place in the second paragraph of the rule. 5. The first illustration does mention that the plaintiff will not be entitled to more than Rs. 375/- in respect of legal practitioner's fee in the suit and in all proceedings therein including the decree in the original suit. The expression "and in all proceedings therein" does not find place in the second paragraph of the rule. We are of opinion that this illustration, however, refers to a proceeding which takes place in the suit prior to its final disposal by the trial court and does not refer to other proceedings which may have a connection with the suit but are proceedings subsequent to the passing of the decree. The review application is a sort of alternative remedy to the filing of an appeal. The mere fact that the review application is made to the same court which has passed the decree, does not affect the nature of the proceedings. 6. We are, therefore, of opinion that costs can be taxed within the maximum taxable amount with respect to the legal practitioner's fee according to the rules in a review application even when maximum legal fee had been taxed in the original decree. The question is therefore answered in the affirmative. 7. Let this opinion be sent to the Bench, concerned.