Sudhi Ranjan Das, J.

1. This is an attorneys suit for the recovery of thebalance of his taxed costs.

2. The plaintiff acted as the attorney for the presentdefendant in suit No. 891 of 1931. That suit was filed in this Court on 25-4-1931by the defendant as the administrator to the estate of his mother Sm. MadhabMohini Dassi, deceased against the executors of his father Gopal Chandra Sinha,deceased, who was during his lifetime the executor of the deceased lady. Thatsuit was for the recovery of several government promissory notes, jewellery,ornaments and other properties belonging to the deceased lady and alleged tohave been retained by the said executors and also for administration, ifnecessary, of the estate of the said Gopal Chandra Sinha. The defendantretained and employed the plaintiff, who is a practising attorney of thisCourt, as his attorney to act for him in that suit. The warrant of attorneyexecuted by the defendant on 24-4-1931 is Ex. E in this suit. The said warrantof attorney was duly filed in Court in that suit and the plaintiff acted as theattorney for the defendant throughout that suit under that warrant of attorney.

3. By the preliminary decree made in that suit on 1-6-1933the defendant was declared entitled to government promissory notes of the facevalue of Rs. 25,000, Port Trust Debentures of the face value of Rs. 3,000 andto a sum of Rs. 24,135 with interest thereon and the costs of the said suit anda reference was directed to take certain accounts and make certain enquiriesfor the purpose of ascertaining what further sums, if any, were due from theestate of Gopal Chandra Sinha to the estate of Sm. Madhab Mohini Dassi.

4. The plaintiff duly lodged his bills of costs of that suitupto the said preliminary decree and under some orders made in that suit priorthereto and the same were taxed upon notice to the defendant and allocatureswere issued in favour of the plaintiff. The party and party portions of thesaid taxed costs with interest thereon were realised by the plaintiff from theexecutor defendants in that suit but the sums of Rs. 149-7-6 and Rs. 1752-2-0allowed as costs as between attorney and client and Rs. 357-0-6 being theamount double crossed upto the preliminary decree remained unpaid.

5. Pursuant to the preliminary decree the Assistant Refereeof this Court took up the reference and after a protracted hearing made hisreport on 7-11-1938. By that report the Assistant Referee found and certifiedthat a sum exceeding Rs. 31,000 was still due from the estate of Gopal ChandraSinha to the estate of Sm. Madhab Mohini Dassi and he recommended that thecosts of the reference certified for counsel should be paid by the executordefendants in that suit to the plaintiff therein i.e., the present defendant.

6. Exceptions were taken to the report by both parties inthat suit and after the exceptions had been heard for some days the partiesthereto arrived at certain terms of settlement. On 25-8-1941 a final decree waspassed in that suit in accordance with those terms of settlement which wereordered to be carried out. The terms of settlement embodied in that finaldecree (Ex. F) were as follows:

(1) Both the exceptions now pending shall be discharged andthe Report of the Assistant Referee is hereby confirmed including the costsrecommended by him.

(2) The Executor defendants shall get the costs of this suitand also of the Reference and exceptions as of a hearing and also of the costsof the suit No. 1084 of 1931 (Sadasiv Mitter v. Purna Chandra Sinha) out of theestate of Gopal Chandra Sinha to be taxed, if necessary, as between attorneyand client.

(3) Purna Chandra Sinha will be at liberty to pay all hiscosts of the two exceptions to be taxed as between attorney and client as of ahearing as also the attorney and client portion of the costs (1) of this suit,(2) of the said other suit No. 1084 of 1931 and (3) of the reference before theAssistant Referee out of the estate of Madhab Mohini Dassi.

7. The usual procedure for circulation of the draft decreeand the approval thereof by the attorneys of the parties was gone through andeventually on 25-9-1941 the draft decree was finally settled and passed by theMaster. The final decree was engrossed and signed by the Master on 10-12-1941and by the Judge on 12-12-1941. On 2-2-1942 the plaintiff as attorney for thepresent defendant received service of a copy of the decree from the attorneysof the other side. The final decree (Ex. F) was filed on record on 4-2-1942.

8. On 21-12-1942 the plaintiff paid Ra. 362-4-0 in stampsfor taxation of his bill of costs subsequent to the preliminary decree and on22-12-1942 lodged the said bill for taxation both as between party and partyand as between attorney and client. The said bill was duly taxed on notice toall parties including the defendant and eventually on 2-8-1944 an allocatur forRs. 12,988-15-0 as between party and party with a body allocatur for Rs.19,640-4-9 as between attorney and client was issued.

9. The plaintiff admits that besides the party and partycosts upto the preliminary decree realised from the executor defendants in thatsuit the plaintiff received from or on behalf of the defendant the total sum ofRs. 8789-7-0 including Rs. 4819-7-0 from the Public Debt Office by two moneydrafts. The plaintiffs case is that he made over to the defendant Rs. 4819-7-0being the amount of the said two money drafts which is acknowledged by thedefendant by his receipt (Ex. J) and certain petty sums which together withcertain petty expenses incurred for him amounted to Rs. 276-3-0 wereappropriated by the plaintiff leaving a balance of Rs. 3,693-13-0 in his hands,This balance of Rs. 3,693-13-0 is said to have been appropriated by theplaintiff towards his dues in the manner alleged in para. 8 of the plaint. Onthis basis and after the aforesaid appropriation the sums of Rs. 12,988-15-0being the party and party costs subsequent to the preliminary decree and Rs.18,890-11-3 being the balance of the attorney and client portion of the costssubsequent to the preliminary decree making a total of Rs. 31,879-10-3 remaineddue to the plaintiff.

10. On 10-8-1944 the plaintiff applied on a tabularstatement for execution of the final decree in that suit against the defendantand obtained an interim order for attachment of certain moneys due to thedefendant under certain decrees and orders. That application was eventuallydismissed.

11. Appreciating that there was considerable doubt as to thesuccess of the application for execution, the plaintiff on 15-8-1944 madeanother application, namely, an application for an order for payment under theprovisions of Ch. 38, R. 48 of the Original Side Rules and obtained an interiminjunction restraining the defendant from disposing of premises No. 99/1,Karaya Road or from withdrawing the party and party costs from the executordefendants in that suit. That application came up for hearing before me on24-1-1945. In view of the conflicting allegations, claims and counterclaimsmade by the parties I did not think that it was a proper case for a summaryorder for payment and I relegated the plaintiff to a suit and ordered the costsof that application to abide the result of such suit. To protect the plaintiffI took an undertaking from the defendant not to alienate the said premises orto withdraw the party and party costs until the disposal of the suit that mightbe filed. I further directed that if such suit was not filed within six weeksthe undertaking of the defendant would stand discharged and the plaintiff wouldhave to pay the costs of that application. The present suit was accordinglyfiled on 31-1-1945.

12. In this suit the plaintiff seeks to recover Rs.31,879-10-3 as the balance of taxed costs. He also claims interest at 6% perannum on all advances made by him for out of pocket expenses from 22-12-1942before which date all such advances had been made upto 2-8-1944 when theallocatur was issued and further interest at like rate from the date ofallocatur until payment.

13. The defendant filed his written statement on 2-3-1945.In the written statement the defendant admits having employed the plaintiff inthe said suit No. 891 of 1931 upon terms contained in the warrant of attorneyexecuted by him on 24-4-1931 and that the plaintiff rendered professional servicein connection with that suit. He denies, however, that the plaintiff renderedany service after the final decree dated 25-8-1941. He alleges that besides theamounts admitted to have been received by the plaintiff the latter receivedvarious other sums from the defendant or to his use and that on accounts beingtaken nothing will be found due to the plaintiff. The defendant denies thefactum or validity of the appropriation of Rs. 3693-13-0, and states that itwas expressly agreed that all moneys received by the plaintiff from theexecutor defendants on account of suit No. 891 of 1931 would be appropriatedtowards the costs of that suit. Finally he pleads limitation and denies allallegations made by the plaintiff to get over the bar of limitation.

14. Three several applications were made by the plaintifffor further and better particulars of the allegations made in severalparagraphs of the written statement to the effect that the plaintiff hadreceived diverse other amounts and eventually by an order made on 30-11-1945the greater parts of paras. 6, 7 and 8 of the written statement were struckout.

14a. Amongst the issues suggested by Mr. S.B. Sinhaappearing for the defendant at the hearing before me were the two followingissues:

A. Is the plaintiff entitled to a decree without taking anaccount of all dealings between the plaintiff and the defendant

B. Has the plaintiff given credit for all sums received byhim from or on behalf of the defendant

Mr. Sinha contended that an agent was not entitled to anydecree for any sum without rendering a full and complete account; that theagent could not pick and choose a particular item or items in his favour andask for a decree for the same and that before any decree could be passed infavour of the agent he must render accounts of all dealings. The object ofthese issues, Mr. Sinha admitted, was to make the plaintiff to render a generalaccount of all dealings between the plaintiff and the defendant including allmoneys received by the plaintiff in course of his employment in that suit andin all other proceedings or matters. I disallowed these issues. In the firstplace the general allegations that the plaintiff had received diverse sums fromor on account of the defendant made in paras. 6, 7 and 8 of the writtenstatement had been struck out for want of proper and sufficient particulars andthe defendant could not be permitted to raise those allegations on thepleadings as they stood after the amendment. In the next place the principlerelied on by Mr. S.B. Sinha did not appear to me to be applicable to a case ofseveral independent contracts of employment. The plaintiff was employed as thedefendants attorney in suit No. 891 of 1931 by the warrant of Attorney towhich I have already referred. He was employed in other proceedings or mattersseparately and independently. The defendant as the principal was and isundoubtedly entitled to call upon the plaintiff to render accounts in respectof each of these employments but I took the view that the accounts in respectof the other matters were entirely separate accounts and did not form any partof the account in that Butt and that the defendants rights against theplaintiff in respect of those other matters being a mere right to account couldnot be brought into this suit and set off against the plaintiffs claim in thissuit unless and until the amount of his claim had been previously ascertainedand fixed. I agreed with Mr. Sinha that the plaintiff was bound in this suit toaccount for all moneys received by him from or on account of the defendant incourse of his employment as attorney in suit No. 891 of 1931 but I did notaccept his further contention that the defendant was entitled in this suit toask for accounts in respect of the other matters. All that the defendant wasentitled to insist upon in this suit was that the plaintiff must give himcredit for all moneys received by the plaintiff in course of his employment insuit No. 891 of 1931. There was no suggestion, particularly after portions ofparas. 6, 7 and 8 had been struck out, that in suit No. 891 of 1931 theplaintiff had received any money besides those admitted in the plaint in thissuit. The fact of several separate and independent employments having beenpointed out to him and in view of the inability of the defendant to allege orprove that the plaintiff had received any other moneys as attorney in suit No.891 of 1931 Mr. Sinha did not press for raising these two issues. Eventuallythe following issues were raised and settled:

1. (a) Is the suit barred by limitation

(b) Was the application for order for payment prosecutedbetween 15-8-1944 and 24-1-1945 Was it so prosecuted in good faith or with duediligence

(c) Is the plaintiffs claim or any part thereof saved fromlimitation by reason of the facts alleged in para. 12 of plaint.

2. (a) Was there any appropriation as alleged in para. 12 ofthe plaint

(b) Is the alleged appropriation valid and binding on thedefendant

3. To what amount, if any, is the plaintiff entitled

I now proceed to deal with the issues seriatim.

15. Re. Issue 1(a): The principal controversy before mecentred round the plea of limitation founded on Art. 84, Limitation Act. Thatarticle prescribes for a suit by an attorney or vakil for his costs of a suitor a particular business, there being no express agreement as to the time whensuch costs are to be paid, a period of three years commencing from the date ofthe termination of the suit or business or (where the attorney or vakilproperly discontinues the suit or business) the date of such discontinuance.There was no dispute that Art. 84 was the appropriate article governing thiscase. It was not contended before me that the consent decree gave anyindependent-right to the plaintiff so that this suit could be said to befounded on his rights under the decree and governed by Art. 120 as was held inRustomji v. Fazal Rahim, : A.I.R. 1932 Bom. 378 [LQ/BomHC/1931/109] : (138 I.C.832). Both sides proceeded on the footing that Art. 84 governed this suit. Theonly controversy was as to what constituted the termination and the date ofsuch termination of Suit No. 891 of 1931. Mr. Sinha for the defendant contendedthat the suit terminated on 25-8-1941 when terms of settlement were put in andthe final decree was made. Mr. S.N. Banerjee for plaintiff maintained that thesuit terminated on 2-8-1944 when the allocatur was issued or at any rate on2-2-1942 when the plaintiff did the last act as attorney for the defendant,namely accepted service of a copy of the final decree made by Messrs. K.K. Dutt& Co. the attorneys for the executor defendants in suit No. 891 of 1931 andthe charge in respect of which had been allowed by the Taxing Officer. If25-8-1941 were to be taken as the date of the termination of the suit then, subjectto the issue of extension of time under S. 14, Limitation Act, the present suitwhich was filed on 31-1-1946 would be barred under Art. 84. On the other handthe suit would be within time if either of the two dates insisted upon byLearned Counsel for the plaintiff and mentioned above were to be accepted asthe date of the termination of the suit. A large number of authorities, Englishand Indian, were referred to and relied on by Learned Counsel in support oftheir respective contentions. I think the authorities show that the startingpoint is somewhere in between the two dates suggested by Learned Counsel oneither side.

16. The earliest authority that was brought; to my noticewas the opinion of Lord Coke in 2 Ins. 378 expressed in the following terms:

By the judgment against the defendant the warranty ofattorney is determined; for thereby placitum terminatur, but only to sueexecution (which is the fruit of the judgment) within the year, and if be sueout execution within the year he may prosecute the same after the year; but ifhe sue out no execution within the year, then after the year is ended afterjudgment, his warrant of attorney is determined.

17. In Lawrence v. Harrison, (1654) Style 426 : 82 E.R. 833,the client brought an action upon the case against his attorney for deliveringa fieri facias against him in the suit wherein the attorney acted for him assuch and for causing it to be executed against him contrary to the trustreposed in him. In giving judgment for the plaintiff (client) Rolles C.J.observed:

The only question is, whether the warrant of attorney bedetermined by the judgment given in the suit wherein he was retained; and Iconceive it is not for the suit is not determined, for the attorney after thejudgment is to be called to say why there should not execution be made outagainst his client, and is trusted to defend his client, as far as he can fromthe execution.

The two authorities referred to above indicate that theauthority of the attorney of the successful party continues for realising thefruits of the judgment for a year after the judgment and still further ifexecution is taken out within the year and that of the attorney for theunsuccessful party continues for defending his client from execution. These twoauthorities, by themselves, do not throw any light on the question whether thecause of action of the attorney for his costs accrues immediately afterjudgment or whether he must wait until his authority comes to an end.

18. At Common Law the employment of an attorney was regardedas one entire contract and the attorney was not entitled to get anyremuneration until the entire work was done. In Cresswell v. Byron, (1807) 14Ves. 271 : 33 E.R. 525, Lord Eldon L.C. referred to the practice of the CommonPleas Court:

The client may discharge his solicitor; but I do not knowthat a solicitor, whatever may be his reasons for declining to proceed, canclaim a lien, if be does not carry the business through to a hearing. If thatcould take place, there might be numerous claims of lien. The Court of CommonPleas, when I was there, held, that an attorney, having quitted his clientbefore trial, could not bring an action for his bill.

19. In Rothery v. Munnings, (1830) 1 B & Ad. 15 : 109E.R. 693, plaintiff had been retained by the defendant as his proctor toconduct an appeal on his behalf from the Vice-Admiralty Court at Mauritius tothe High Court of Admiralty in England. On 23-7-1822 sentence was given againstthe appeal and the defendant (client) was condemned in costs. On 31-10-1822 theplaintiff (proctor) received a letter from the adverse proctor threatening totake out process. The plaintiff attended the adverse proctor. No proceeding,however, took place, the defendant (client) having paid the costs. Theplaintiff (proctor) commenced his action in September 1828 for the amount ofhis charges in the cause. No item of his demand was proved to have accruedlater than the day of the sentence except two items both dated 31st October,namely 6s. 8d. for perusing the adverse proctors letter and 13s. 4d. paid forregistrars bill for costs, Sportulage and attendances. Lord Tenterden C.J.directed a verdict for 1 only being the amount of the two items and gave leaveto the plaintiff to move to enter a verdict for the whole demand. Indischarging the rule which was accordingly obtained by the plaintiff LordTenterden C.J., observed:

When the suit was terminated by a sentence, there is nodoubt that the proctor had a right to call for the amount of his bill. His dutywas then concluded, unless something should occur to require his furtherinterference. That was quite uncertain. A letter is indeed sent to him inOctober, on the subject of the costs, and a further charge arises for theperusal and consequent attendance; but this was mere accident. As, therefore,his right of suing on the items now in question accrued at the time of thejudgment, and was not enforced within six years, I think he is not entitled torecover beyond the amount given at the trial.

Bayley, J. did not see any necessary connection between thelast two items and the rest of the bill. Parke, J.s opinion was as follows:

If the right of action accrued de die in diem as wascontended on behalf of the defendant, the items previous to October are withinthe statute on that ground. But at all events the right accrued when judgmentwas given on the appeal. In either view of the case the statute is a bar.

20. Then we come to Vansandau v. Browne, (1832) 9 Bing. 402: 131 E.R. 667, where Tindal, C.J., sitting in the Court of Common Pleas,followed the principle adopted by Lord Tenterden in Rowson v. Earle, 1 Mo.& Mal. 538 and held that an attorney was not compelled to proceed to theend of a suit in order to be entitled to his costs, but might, upon reasonablecause and giving reasonable notice, abandon the conduct of the suit and in sucha case might recover his costs for the period during which he was employed.This case, therefore, engrafts an exception to the general common law rule.

21. In Harris v. Osbourn, (1834) 2 C. & M. 629 : 149E.R. 912, the Court of Exchequer decided that where a client employed anattorney to conduct a suit it was an entire contract to carry on the suit toits termination, and determinable by the attorney only on reasonable notice andthat where no such notice had been given the statute was no bar to that part ofthe demand which was for business done more than six years before thecommencement of an action by the attorney for business done in the suit whichwas not brought to a termination till within six years of the commencement ofthe action. Lord Lyndhurst C.B. said:

I consider that when an attorney is retained to prosecute ordefend a cause, he entered into a special contract to carry it on to itstermination. I do not mean to say, that under no circumstances, can be put anend to this contract; but it cannot be put an end to without notice.

To the like effect are the following observations of Parke Bin the same case:

The cases which have been cited may be explained either uponthe supposition that this is to be treated either as a general contract or uponthe supposition that it is a special contract, to carry the suit to itstermination, subject to be put an end to on reasonable notice. In ancient timesit was considered as an entire contract, of which the attorney could not divesthimself by any means; but, in consequence of the increased expenses of suits inmodern times, the rule has been varied, and the attorney is at liberty todetermine the contract on reasonable notice. The contract of the client is topay at the completion of the suit; and unless the contract be defeated byreasonable notice the attorney has no cause of action, and the Statute ofLimitations is no defence.

This case, therefore, recognises the general rule that theemployment of an attorney in a suit is an entire contract in respect of whichthe cause of action for costs accrues on the termination of the suit and alsothe exception that it may be determinable by reasonable notice in which casethe attorneys cause of action arises on such termination of the contract. Itthrows no light on the question as to when a suit is to be regarded asterminated.

22. In Whitehead v. Lord, (1852) 7 Ex. 691 : 155 E.R. 1126the facts were as follows: In 1835 Ann Lord who had been made a defendant in asuit in equity by a bill of revivor retained the plaintiff as her solicitor inthat suit. In 1840 an order was made that a supplemental bill should be filedto make certain other persons parties to the suit. No supplemental bill was everfiled nor was any further proceeding taken in the suit. In June 1851 Ann Lorddied and the defendant took out letters of administration. In July 1851 theplaintiff gave notice to the defendant the administrator of the client thatunless the sum of 30 was paid to him for his bill of costs be would cease toact any longer as solicitor in the suit. Payment not having been made theplaintiff filed the present action claiming 68 for costs due up to 1840 whenthe last proceedings in the suit were taken. The defendant took the plea oflimitation. At the trial verdict was given for the plaintiff for 68, leavebeing reserved to the defendant to move to set aside the verdict. A ruleobtained by the defendant was, however, discharged. It was held that as a generalrule an attorney or solicitor retained to conduct a suit was under theobligation to carry it on to its termination and he could not sue for his billof costs until that period had arrived. It was further held that the attorneyor solicitor might give a reasonable notice to his client to supply him withadequate funds and in case of refusal be might sue him for his costs. Theretainer was also held to be determined by the death of the client. This case,therefore, engrafted another exception to the general rule and allowed theattorney or solicitor to sue for his costs on the death of the client, althoughthe suit had not been terminated. In this case the defendant attempted tointroduce another exception which was repelled by the Court. The observationsof Parke B. may be quoted here:

The rule, as applicable to this case, was correctly laiddown in Harris v. Osbourn, ((1834) 2 C. & M. 629 : 149 E.R. 912) that anattorney, under a retainer to conduct a suit, undertakes to conduct the suit toits final termination, and be cannot sue for his bill until that time hasarrived, subject, however, to the exception there stated and subject also tothe additional exception which arises upon the death of the client, in whichcase he can sue the personal representatives. But Mr. Phipson now seeks tointroduce another qualification to the rule for he contends that where a Buttin the Court of Chancery falls into a state of sleep fur a lengthened period,the attorney may sue his client when a reasonable time has elapsed after thesuit has fallen into such a state. But I think that there is no authority forthat position.

23. The next case cited was that of Harris v. Quine, (1869)4 Q.B. 653 : (38 L.J.Q.B. 331). There the plaintiffs who were attorneys in theIsle of Man were retained by the defendant in 1858 to defend a suit in the ManxCourt. The suit was dismissed in April 1861. In September 1861 the other partyin that suit appealed and the plaintiff continued to act as the solicitor forthe defendant and conducted the appeal up to 1st October 1862. The plaintiffbrought an action in the Manx Court for his costs more than three years afterOctober 1862 and the Manx Court dismissed that suit as barred by limitationbecause the Manx Statute prescribed for such a suit a period of three yearsfrom the date of the cause of action. The plaintiff then brought an action inEngland in January 1868 for the costs of the suit and the appeal. The defendantpleaded res judicata and limitation. It was held that the Manx Statute of Limitationonly barred the remedy but did not extinguish the right and, therefore, thejudgment of the Manx Court did not operate as res judicata and further thatthere being a continuous employment of the plaintiffs none of the items werebarred. As regards the plea of limitation Cockburn, C.J. said:

On the other branch of the case, the defendants counselcontended that the suit was terminated when it was dismissed in the Courtbelow, and that the Statute of limitations began to run from that time. Itnothing had taken place after that judgment, and the other items in the billhad no reference to the suit, that would be so; but as soon as the defendantinstructed the plaintiffs to appear for him in the appeal, and they did so, itis nothing more nor less than a continuation of the original suit, although theplaintiffs might have refused to go on.

Blackburn J. expressed the same views in the followingterms:

On the other question it has been decided as long ago asHarris v. Osbourn: ((1834) 2 C & M 629 : 149 E.R. 912), that the conduct ofa suit is an entire contract, and the attorney can ordinarily sue at the end ofthe litigation. No doubt, prima facie, the termination of a suit is whenjudgment is given in the Court in which the action is commenced; but when anappeal is brought, and the same attorneys continue to conduct the suit onappeal, that is a continuation of the original suit, and what prima facie was atermination of the contract ceases to be so.

24. Sir John Wickens, V.C. in Baile v. Baile, (1872) 13 Eq.497 at p. 509, accepts as correct and adopts in a chancery case the principleslaid down in Harris v. Quine, ((1869) 4 Q.B. 653 : 38 L.J.Q.B. 331).

25. Sir George Jessel M.R. in In re Hall and Barker ( 1873)9 Ch. D. 538, strongly criticised the common law doctrine which treats theattorneys retainer in an action as an entire contract and at any rate declinedto extend it to the retainer of a solicitor in administration or winding upmatters pending in the Chancery Court. The matter arose out of an applicationby the client for an order for taxation of two bills delivered by hissolicitor. The first bill had been sent more than a year before the date of theapplication for taxation but the second bill was sent within a year before theapplication. The question was whether the two bills should be treated as onebill brought down to the date of the latest delivery. It was held that theywere separate bills and the first one could not be taxed because it had beendelivered more than a year prior to the application and that only the secondbill could be taxed. The Master of the Rolls recognised that it had been heldthat the retainer of a solicitor at common law to bring an action was aretainer to do a single thing, namely to bring the action to an end. Heexplained that the reason of that rule was that actions at common law did notoccupy a very long time and were comparatively simple matters but that the samereason did not apply to a suit in equity which might relate to a number ofdifferent matters and might be continued for a very long time. After referringto the observations of Parke B. in Harris v. Osburn : (1834-2 C. & M. 629 :149 E.R. 912), which I have quoted above the learned Master of the Rolls saidat p. 545:

If a man engages to carry a box of cigars from London toBirmingham, it is an entire contract and be cannot throw the cigars out of thecarriage half way there, and ask for half the money; or if a shoemaker agreesto make a pair of shoes, he cannot offer you one shoe and ask you to pay onehalf the price. That is intelligible. In my opinion, in the case of solicitorthere is not an implied contract of that kind. It bears no fair relation to thedoctrine of entire contract.....In my opinion it would be not only an unwisebut an improper extension of the doctrine of entire contract to apply it tosuch a case as this. But, even if it were right, there must be a breaksomewhere. In the case of a Chancery suit I have shown what sort of breaks youmay have. In the case of winding up there are all sorts of breaks. Is it to besupposed that, because a few matters are un-disposed of, the solicitor is notto be paid until the final termination

The learned judges opinion was that in Chancery matters thesolicitor would be entitled to submit bills periodically at different stages ofproceedings when a break might occur although the suit was not finished.

26. The case of Lady De La Pole v. Dick, (1885) 29 Ch. D.351, was concerned only with the question of duration of the authority of thesolicitors for the defendant in that case. The estate of Sir Reginald De LaPole was being administered in an action in the Chanchery Court. With the leaveof the Court Lady De La Pole the executrix of Sir Reginald brought this actionagainst Dick an agent of the testator for an account of his receipts andpayments. Judgment was given for an account and the accounts were taken by theOfficial Referee. In June 1883 the action came on for further consideration. Anorder was made directing the defendant to pay a certain sum of money into Courtwith a further direction that on such payment the money was to be carried tothe credit of the administration suit. The defendant went abroad withoutcomplying with the order. It was considered necessary to vary the form of that orderand accordingly leave was obtained to appeal from that order. The notice ofmotion before the appeal Court was served on the London agents of the solicitorat Exeter who had acted for the defendant in the action. They stated that theyhad ceased to act for him, but they still were his solicitors on the record, nonotice of change of solicitors having been given. The question was whether itwas a good service. It was held, following the opinions of Lord Coke and RollesC.J. to which I have already referred, that as the order on furtherconsideration had not been worked out, the solicitors still represented thedefendant and that service of the notice on them was good service. This casethrows no light on the question as to when the solicitors cause of action forcosts accrues.

27. The case of Callow v. Young, (1886) 55 L.T. (N.S.) 543stands on the same footing. There Chitty J. made an order for issue of a writof attachment for breach of an undertaking on the strength of service of thenotice of motion on the solicitor on record of the party proceeded against. Thelearned Judge observed:

So long as any order made in the action is not worked out,or so long as anything remains for working out the judgment, the solicitor onthe record remains the solicitor, and the trial of the action does notdetermine that relation.

28. In Re: Romer & Haslam, (1893) 2 Q.B. 286 : (62L.J.Q.B. 610) was also concerned with the question of taxation. It was held bythe Court of appeal that where a solicitor was retained to conduct litigation,other than an ordinary action at common law, which might extend over aconsiderable period of time, and in which breaks might occur of such a kind asto be equivalent to the conclusion of a definite and distinct part of theproceedings, he might deliver to his client a bill of costs for business doneupto the occurrence of any such breaks in the litigation and demand payment.Cave J. took the view that In re Hall and Barker : (1893-2 Q.B. 286 : 62L.J.Q.B. 610) had modified the common law rule and that the principle ofdecision in In re Hall and Barker also applied to a retainer of a solicitor ina common law matter which might take considerable time.

29. In The Queen v. The Justices of Oxford-shire, (1893) 2Q.B. 149 : (62 L.J.M.C. 156) the notice of appeal against an affiliation orderwas served upon the solicitor who had appeared for the mother on the hearing ofthe application for the order at petty sessions and such service was acceptedby him on her behalf. It was held that the solicitors retainer had come to anend upon the making of the order and that he had no authority to accept serviceof the notice of appeal and there was no valid service of such notice. LordEsher M.R. in whose judgment Bowen & Key L. JJ. concurred, recognised, withregard to common law actions in which there had been a judgment but suchjudgment had not been carried into effect by execution, that so long as stepsremained to be taken in the litigation for the purpose of obtaining for oneparty the fruits of it or of defending the other party from any wrongproceeding by way of execution, the action was not finished and therefore thesolicitor employed by a party remained his solicitor. The Master of the Rollsalso conceded that after the decision in Lady De La Pole v. Dick : (1885 29 Ch.D. 351) it had to be recognised that the same principle applied to a litigationin the Court of chancery. His Lordship, however, did not find it possible toapply the same principle to the case before him, for the result of applyingthat rule would be that the authority of the solicitor would continue for thewhole period during which payments had to be made by the appellant in respectof the child. It is not necessary, for the purposes of the case now before me,to scrutinise the reasons of this decision any more closely and it will sufficeto note that this case only lays down that on an affiliation order being madeby the petty sessions that litigation is finished and the authority of thesolicitor employed by a party thereto comes to an end then and there.

30. In Underwood, Son & Piper v. Lewis, (1894) 2 Q.B.306 : (64 L.J.Q.B. 60) the Court of appeal after re-affirming the general rulelaid down in the earlier cases that a solicitors retainer in a common lawaction constituted an entire contract held that a solicitor could not sue forhis costs until his contract had been entirely fulfilled, unless the case wasbrought within some recognised exception to the general rule. One of theexceptions to the general rule was that the solicitor who properly declined toact for the client might sue for his costs although the action was notfinished. In order to establish that the solicitor properly put an end to thecontract it was not enough for the solicitor to prove that he had given reasonablenotice to the client of his intention not to act any further but that he mustalso prove that he had good cause for not acting any further. There must beboth good cause and reasonable notice before a solicitor can refuse to act anyfurther and sue for his costs up to the date of his discontinuance. Both LordEsher M.R. and Davey L.J. left the question open as to whether a solicitor orhis legal representative could demand any payment of his costs if the wholebusiness had not been completed by reason of the illness or death of thesolicitor. Referring to the decision of Jessel M.R. in In re Hall and Barker,((1878) 9 Ch. D. 538) which was said to have exploded the Common Law doctrineLord Esher observed at p. 312:

I cannot think that that decision had the effect soattributed to it, and, if it had, I think it ought to be overruled. I thinkthat what he really meant to decide was merely that it would be unjust to applythe rule undoubtedly applicable to common law actions in the case of chancery suits,where the proceedings might be of a very long and complicated character and bedivided into several stages, and if the same implication were made as in thecase of a retainer in common law actions, the solicitor might be unable torecover anything for the work he had been doing for a long period of years;that it would be wrong in such cases to make the same implication as in thecase of a common law action, because it could not be said that all reasonablepeople fairly considering the matter would come to the conclusion that bothparties must have understood that the solicitor was employed on the terms thathe would carry on the litigation until the end. With that decision, soconstrued, we have on the present occasion nothing to do.

A.L. Smith, L.J., after referring to the general ruleestablished in Harris v. Osbourn, (1834-2 C. & M. 629 : 149 E.R. 912) andWhitehead v. Lord, (1852-7 Ex 691 : 155 E.R. 1126) observed as follows:

I do not find that this doctrine, so far as it applies tocommon law actions, is really dissented from by Jessel M.R. in In re Hall andBarker : (1878-9 Ch. D. 538). He there says that he will not adopt it inrelation to suits in equity then before him, but he enunciates it as theprinciple applicable in the case of common law actions.

The above observations indicate that the view expressed byCave J. in In re Romer & Haslam, (1893-2 Q.B. 286 : 62 L.J.Q.B. 610) thatIn re Hall and Barker, ((1878) 9 Ch. D 538) had modified the common lawdoctrine was not correct. In the light of the above explanations In re Hall andBarker, (1878-9 Ch. D. 538) does not destroy the general rule applicable to theretainer of a solicitor in all common law actions but only lays down that itdoes not apply to a retainer of a solicitor in complicated and long drawnbankruptcy, administration and winding up matters in the Chancery Court andestablishes with regard to chancery matters another exception to the generalrule and enables a solicitor to claim his costs up to well-defined breaks inthe proceedings.

31. Coburn v. Colledge, (1897) 1 Q.B. 702 : (66 L.J.Q.B.462) was an action by a solicitor for the amount of a bill of costs in respectof certain work done by him as solicitor for the defendant which was completedon 30th May 1889. On 7th June 1889 the defendant left England and went beyondthe seas. On 12th June 1889 the plaintiff sent by post his signed bill of coststo the defendant at an address in Guernsey given by the defendant. The letterreached the defendant in Australia in 1891. The defendant returned to Englandin 1896 and on 12th June 1896 the plaintiff commenced this action. Under theEnglish Limitation Act, 1623, all actions of debt grounded upon any lending orcontract without a speciality must be commenced within six years "next afterthe cause of such action." By 4 and 5 Anne C. 16, S. 19 it was providedthat if the person against whom there was any such cause of action was at thetime such cause of action arose beyond the seas then the person entitled tosuch cause of action might bring his action within six years after the returnof that person. Section 37, Solicitors Act, 1843, provided that no attorneyshould commence or maintain any action for costs for any business done by himuntil the expiration of one month after the delivery of his bill of costs tothe client. In that case if the cause of action arose on the completion of thebusiness, i.e. on 30th May 1889 then the defendant being in England on thatdate his subsequent going out of England on 7th June 1889 did not stop the timerunning. This was conceded by Learned Counsel for the plaintiff. The argumentthat was advanced was that as the solicitor could not commence any action untilafter a month after delivery of his bill his cause of action did not accrueuntil after such delivery and as the defendant was beyond the seas when thebill was sent by post and when it reached him the plaintiff had six years afterthe return of the defendant to England. The Appeal Court upholding the trialCourt held that the Solicitors Act did not affect the cause of action but onlypostponed the remedy and the cause of action arose when the business wascompleted, and, as the defendant was in England at the time, the Statute beganto run and therefore the action was barred. This case only reaffirms thegeneral rule that a solicitors cause of action for his remuneration arises onthe completion of the entire business. In this case apparently the solicitorwas not employed in a suit and, therefore, the question of the solicitor beingentitled, as and by way of exception to the general rule, to his remunerationon the termination of the action by judgment did not arise.

32. In Warmingtons v. McMurray, (1936) 2 All. E.R. 745; S.C.On appeal (1937) 1 All. E.R. 562 : (53 T.L.R. 395), the defendant, a lady hadembarked upon a variety of investments and transactions which were likely toresult in serious loss. She retained the plaintiffs generally to prosecute allsuch actions and proceedings as might be necessary to get her out of herdifficulties. Having successfully prosecuted several matters the plaintiffsdelivered a bill of costs. The defendant, while offering to meet alldisbursements in certain arbitration proceedings which were then beingprosecuted on her behalf, intimated that she could not pay anything further.The plaintiffs then discharged themselves from their retainer and delivered asecond bill and brought an action upon both bills. Goddard J. accepted thereasonings of Jessel M.R. in In re Hall and Barker, (1878) 9 Ch. D. 538 andheld that this was not a case of a solicitor retained to prosecute an actionand no question of entire contract arose and the solicitor could uponreasonable notice cease to act and sue for his costs. At p. 749 His Lordshipobserved:

To employ a solicitor to conduct an action is one thing; toemploy him to get you generally out of your difficulties, which may involveseveral actions, originating summonses, bankruptcy proceedings and taking allmanner of proceedings extending perhaps over years, is another. I think itwould be altogether wrong to apply the doctrine of entire contract to such astate of things as the present and to isolate this arbitration, so to speak,from everything else. I think that the reasoning of Sir George Jessel M.R. inIn re Hall and Barker : (1878) 9 Ch. D. 538, exactly applies to this case.

This decision was upheld on appeal. This case shows thatwhen a solicitor is retained not in any particular action but is retained in ageneral way so that he may have to do diverse kinds of businesses which may bespread over a very long time, the nature and diversity of the business mayjustify an inference, in the absence of express agreement, that the parties didnot intend the retainer to be an entire contract to finish all the businesses.

33. As regards the nature and scope of an attorneysretainer the observations of the different learned Judges which I have quotedabove may, on a cursory reading, appear to be conflicting. Thus Lord Coke saidthat "by judgment the warrant of attorney is determined" except forthe purpose of execution. Rolles, C.J. did not conceive that the warrant ofattorney was determined by the judgment given in the suit "for the suit isnot determined." Lord Tenterden, C.J. expressed the view that "the suitwas terminated by a sentence." Cockburn, C.J. agreed that unless there wasan appeal "the suit was determined when it was dismissed in the Courtbelow" and in the same case Blackburn J. said "No doubt, prima facie,the termination of a suit is when judgment is given in the Court in which theaction is commenced." Chitty, Js view was that "the trial of theaction did not determine that relation" (i.e. as between the attorney andclient). Lord Esher M.R. formulated the common law rule by saying that so longas the judgment had not been worked out "the action was notfinished." It is, however, possible to reconcile the differentobservations and deduce certain broad general principles. The net result of theEnglish decisions is summarised in Halsburys Laws of England, Edn. 2, Vol. 31,Art. 144 at pp. 95, 96 in the following terms:

The general rule is that a solicitor when retained by aclient undertakes to finish the business for which he is retained. Thus, aretainer is, generally speaking, an entire contract, that is to say, a contractto do certain business, to finish that business, and to be remunerated at thecompletion of the business.

Applying the broad general principles mentioned above in theemployment of an attorney in an action it is clear that when an attorney acceptsa retainer in an action he undertakes not only to act upto the judgment butalso to continue to act thereafter until the fruits of the judgment arerealised (Per Lord Coke) or until the client needs protection against execution(Per Rolles C.J.). In other words he undertakes to act not only in the actionproper but also in proceedings which may take place after judgment. When RollesC.J. said that "the suit was not determined" or Lord Esher said"the action was not finished" they obviously used the expressions"suit" and "action", not in their strict sense but, in thebroader sense as including also the proceedings subsequent to the judgment asthe contest in which they used those expressions clearly indicates. On theother hand when Lord Tenterden C.J said that "the suit was terminated bysentence" or when Blackburn J. said that "termination of a suit iswhen judgment is given", their Lordships obviously used the expression"suit" in its strict meaning covering the proceedings from theinstitution of the suit upto the judgment. If the word "suit" istaken and read in this limited sense then there is no difficulty in holdingthat judgment does terminate the suit. The termination of the suit, however,does not terminate the retainer, for termination of the suit and termination ofthe retainer are different things. The scope of the attorneys retainer goesbeyond the suit and covers proceedings that may arise subsequent to thetermination of the suit as understood in the sense mentioned above.

34. As regards the attorneys right to remuneration theEnglish decisions mentioned above clearly establish that as a general rule theattorneys retainer being an entire contract the attorney is not entitled toany remuneration before the entire contract is fulfilled. His claim forremuneration arises when the whole business is completed and not before.According to the general rule an attorney retained in an action will not beentitled to any remuneration even if the suit terminates by the judgment, forhis entire contract will not be fulfilled until the fruits of the judgment arerealised or until his client needs his protection against execution. He cannotthrow up the retainer and claim remuneration on the basis of quantum meruit. Onthe same principle it has been stated to be doubtful if, on the death of theattorney before the completion of the business, his legal representatives mayclaim any remuneration for the work dons upto the attorneys death. Thehardship of this general rule has been sought to be mitigated by the EnglishCourts by engrafting certain exceptions to that general rule. As far as I canmake out from the English decisions referred to above the attorney has beenheld entitled to claim remuneration, although the entire business has not beencompleted, in the following exceptional cases:

(i) When the solicitor for good cause and on givingreasonable notice to the client declines to act and puts an end to theretainer;

(ii) When the client dies before the completion of thebusiness;

(iii) When judgment is given in the action and there is noappeal;

(iv) When in bankruptcy, administration and winding upmatters in Chancery Courts or in other protracted proceedings there occur inthe proceedings breaks of such a kind as to be equivalent to the conclusion ofa definite and distinct part of the proceedings;

(v) When the nature of the business for which the solicitoris retained justifies an inference, in the absence of express agreement, thatthe parties did not intend the retainer to be a contract to finish thebusiness.

35. From what I have stated it follows that an attorneysretainer in a suit is an entire contract, that the suit is terminated byjudgment, that notwithstanding the termination of the suit the attorneysauthority continues and that the attorney is not entitled to any remunerationbefore the contract is entirely fulfilled unless he can bring himself withinone of the exceptions. One of the exceptions I have mentioned is that when thesuit is terminated by judgment and there is no appeal the attorney becomesentitled to his remuneration up to judgment and to sue for his bill.

35A. In the English Limitation Act 1623 (21 Jac. 1 C. 16)there was no special provision for an attorneys suit for costs. By S. 3 ofthat Statute all actions of (inter alia) debt, grounded upon any lending orcontract without speciality are to be commenced within six years "nextafter the cause of such action". Under the English Statute the startingpoint of limitation being the accrual of the cause of action the solicitorssuit for costs must be instituted within six years from the time when his rightto remuneration accrued according to the general rule or the exceptionsenumerated above whichever may be applicable. The result of the cases on thequestion of limitation is summarised in Halsburys Laws of England, 2nd Edn.Vol. 20 Art. 767 at p. 611 in the following terms:

If a solicitor sues for his costs in an action, the statuteonly begins to run from the date of the termination of the action or of thelawful ending of the employment of the solicitor.

If there is an appeal from the judgment in the action, theStatute does not begin to run against the solicitor if he continues to act assuch till the appeal is decided. But when judgment has been given and there isno appeal, the Statute runs from the judgment, and subsequent items of costsincidental to the business of the action will not take the earlier items out ofthe Statute.

36. Having considered the English authorities cited beforeme and after analysing what I conceive to be the principles underlying them Iproceed to examine and consider the position of attorneys in India. Theearliest reference to attorneys at law that I find is in the Charter of GeorgeIII dated 20th March 1774 which established the Supreme Court in Calcutta.Clause 11 of that Charter empowered the Supreme Court to approve, admit andenrol advocates and attorneys at law who were authorised to appear and pleadand act for the suitors. Clauses 7 to 10 of the Letters Patent of 1862 whichwere subsequently reproduced in Cls. 9 & 10 of our present Letters Patentgave like powers to the High Court. Rules 85 to 142 of our old rules (seeBelchambers 2nd Edn. of the Original Side Rules) related to attorneys. Of thoserules, Rr. 85 to 135 came into force in 1880 and Rr. 186 to 142 were reproducedfrom the Supreme Court Rules. Chapter II of our present rules relates toattorneys. The old rules and the present rules are mainly concerned withprescribing the qualifications for admission of attorneys and the procedureconnected therewith and the manner of execution of the retainer and filing thereofin Court. The law regulating the rights and duties of the attorney vis a visthe client was and is practically left untouched by the rules except in oneimportant particular, namely that under our rules no suitor is at liberty tochange his solicitor without the leave of the Court. Sections 16 and 18, CivilP.C. 1859, which dealt with pleaders did not apply to attorneys for the term"pleader" was not by that Act defined to include them. Then came theCivil Procedure Code of 1882 which by S. 39 after providing that theappointment of a pleader should be in writing and filed in Court proceeded toenact that the appointment when filed in Court would be considered to be inforce until the client or the pleader died or all proceedings in the suit wereended so far as regards the client. This section by reason of the definition of"pleader" in S. 2 of that Act applied to attorneys. No specificindication was, however, given as to when the proceedings were to be regardedas at an end. The provisions of S. 39 of the Code of 1882 are now reproduced inO. 3, R. 4(1) and (2) of our present Code. These provisions like our rules madea substantial departure from the English law relating to attorneys in. thatthey made the retainer irrevocable except with the leave of the Court.Sub-rules (3) to (5) in O. 3, R. 4 are new. Sub-rule (3) provides that for thepurposes of sub-r. (2) certain proceedings mentioned therein shall be deemed tobe proceedings in the suit and consequently the retainer continues throughoutthose proceedings. Except as mentioned above there was and is no provision inour rules or the Code regulating the rights and duties of attorneys in India.It is, however, well known that the English common law and rules of equity wereadministered by the Supreme Court as rules of justice and right" and Iapprehend that the attorneys who came out to India were governed by the commonlaw of England as if they had carried it with them as their personal law. Theattorneys in India are, therefore, governed by the English common law except tothe extent as such law has been modified by our code or rules. The Englishstatutes relating to solicitors have no application to attorneys in India and Ileave them out of consideration. In Damodar Das v. Morgan & Co., : (1933) 60 Cal. 1442 : (A.I.R. 1934 Cal. 341) [LQ/CalHC/1933/207] Panckridge J., following MartenC.J. in Tyabji Dayabhai & Co. v. Jetha Devji & Co., :(1927) 51 Bom. 855 : (A.I.R. 1927 Bom. 542) [LQ/BomHC/1927/53] held that the rights of attorneysin India are the same as the rights of a solicitor in England except in so faras the latter has been diminished or increased by statute, and, if I may add,except in so far as the former has been modified by Indian Acts or Rules. Itfollows, therefore, that an attorneys retainer in India is also an entirecontract and the authority of the attorney continues until the proceedingsincluding those mentioned in sub-r. (3) of O. 3, R. 4 are ended; that theattorney is not as a general rule entitled to any remuneration until allproceedings covered by the retainer are ended unless he can bring himselfwithin any of the exceptions enumerated above.

37. As regards limitation it appears that in our LimitationAct of 1859 (Act XIV of 1859) there was no specific provision governing suitsby an attorney or pleader or vakil for his remuneration just as there was nonein the English statute of 1623. Clauses 9 and 10 of S. 1 of that Indian Actlike S. 3 of the English statute governed suits for money lent or interest orthe breach of any contract made orally or in writing not registered. The IndianAct prescribed a period of 3 years while the English Act provided for 6 years.

38. The Indian Limitation Act, 1871 (Act IX of 1871) for thefirst time, as far as I can find, made special provision for a suit by anattorney or vakil for his costs of a suit or a particular business, there beingno express agreement as to the time when such costs were to be paid. Article 85of that Act prescribed for such a suit a period of three years from "terminationof the suit or business or (where the attorney or vakil properly discontinuesthe suit or business) the date of such discontinuance." This article wasreproduced in Art. 84, Limitation Act, 1877, with the addition of the words"the date of the" before the word "termination" in column3. Article 84 of our present Limitation Act of 1908 is precisely the same asArt. 84 of the Act of 1877.

39. The plaintiff before me was retained in a suit and,therefore, it is not necessary, for the purposes of this suit, to discuss themeaning of the word "business". The plaintiff never declined to actand, therefore, I leave out the portion of column 3 dealing withdiscontinuance. I am only concerned with the words "the date of thetermination of the suit" and the question before me is: What is the truemeaning of those words as used in the Indian Limitation Act. I propose first toexamine the question on broad general lines and attempt to arrive at my ownconclusion and then consider the Indian decisions on the question.

40. I have already quoted various observations of learnedEnglish Judges indicating that a suit is terminated by judgment. In what sensedid the English Judges use the expression "judgment" in that contextDid they mean by "judgment" "the statement given by the Judge ofthe grounds of a decree or order" as that expression has been defined inS. 2(9), of our Civil P.C. or did they mean by "judgment" "theformal expression of an adjudication which, so far as regards the Court expressingit, conclusively determines the rights of the parties with regard to all or anyof the matters in controversy in the suit" as a decree has been defined inour Code Under R.S.C., O. 13, R. 3 where the writ of summons is indorsed for aliquidated demand and the defendant fails to appear the plaintiff is permitted,under certain conditions, to "enter final judgment." Similarprovision for entering judgment is made in various other English Rules. ByR.S.C., O. 36, R. 39 the Judge is enjoined at or after the trial to direct"judgment" to be entered. R.S.C., O. 41 deals with "Entry ofjudgment." A perusal of the different English rules of practice will atonce make it clear that the word "judgment" has a technical meaning.It does not in such context mean the statements or reasons given by the Judgein support of his decision but means the formal expression of the actualdecision which, when entered and filed of record, may be put into execution.There is a background of legal history. The chancery lawyers used to use theterm "decree" to denote the formal expression of adjudication of thechancery Court while the common lawyers used to use the term"judgment" to denote the formal expression of adjudication of thecommon law Courts. Lindley L.J. in Onslow v. Commissioners of Inland Revenue,(1890) 25 Q.B.D. 465 at P. 467 : (59 L.J.Q.B. 556) called a decree of thechancery Court as "the equivalent term to judgment in the Queens BenchDivision." I have no doubt in my mind that when English Judges talk of asuit being terminated by judgment they obviously do not use the word"judgment" as meaning the statement of the reasons delivered by theJudge in Court but they refer to the formal expression of the actualadjudication which is eventually entered and filed of record. Under S. 225,Judicature Act, 1925, "judgment includes decree." In India theposition is still more clear, for, by the very definitions of judgment and ofdecree to which I have referred, it is the decree and the decree alone which,so far as regards the Court making it, conclusively determines rights of theparties. In view of these definitions there is no escape from the propositionthat in India at any rate a suit is terminated not by the "judgment"as it is defined or in its ordinary popular meaning but by the"decree" as defined and as it is understood by lawyers. Theprovisions of O. 3, R. 4 are also significant. Sub-rule (3) of R. 4 prescribesthat certain proceedings therein mentioned are to be deemed to be proceedingsin the suit for the purposes of sub-r. (2). The proceedings referred to insub-r. (3), it will be noticed, are-proceedings which arise normally after thedecree. The provision that those proceedings are to be deemed to be proceedingsin the suit clearly indicates that they are not really proceedings in the suitbut are to be deemed to be so for the specific purpose of continuing theretainer in force, But for sub-r. (3) the retainer would have come to an endbefore these proceedings could arise. This also indicates to my mind that theproceedings in the suit come to an end by the decree.

41. If, as I hold, the suit is terminated by the decree, thequestion still remains: When does it terminate Section 33, Civil P.C.,provides that the Court, after the case has been heard, shall pronounce judgment,and on such judgment a decree shall follow. Then I pass on to O. 20, Rr. 1 to 8which is headed "judgment and decree." These rules also provide thatafter the judgment the decree follows. Rule 6 prescribes the contents of thedecree. Rule 7 provides that the decree shall bear date the day on which thejudgment was pronounced and that when the Judge has satisfied himself that thedecree has been drawn up in accordance with the judgment he shall sign thedecree. It is clear from these rules that a period must intervene between thedelivery of the judgment and the drawing up and signing of the decree. What isthe position of the suit during this period So far as the High Court isconcernedO. 20 Rr. 1 to 8 do not apply. Chapter 16 of the Original Side Rulesdeals with judgments, decrees and orders passed by this Court. Rules 27 of 34lay down the procedure for completing the decree. There has to be anapplication in the form of a requisition in writing by the attorney or theparty appearing in person for the drawing up of the decree. The draft is thenprepared in the office and issued and circulated amongst the attorneys orparties appearing in person. A date has to be fixed for the settlement of thedraft and a notice is to be served on the attorneys and evidence of service isto be filed. The draft has to be approved with or without alteration by theattorneys. The draft is then settled by the Registrar or Master in the presenceof the attorneys. If any party is dissatisfied with the form of the draft as settled,he may apply to Court for speaking to the minutes. If on such application anyvariation is made by the Court such variation has to be embodied in the decree.The decree as finally settled and passed has to be signed by the Registrar orMaster and the Judge and sealed with the Seal of the Court and thereafter filedin Court. There is, therefore, under our rules also an intervening periodbetween the delivery of judgment and the signing and the filing of the decree.What is the position of the suit during this period It is true that both underthe Code and under our Rules the decree is to be dated as of the date of thejudgment and further that the decree takes effect, as regards the rights andliabilities of the parties inter se, as from the date of the judgment. (Holtbyv. Hodgson, (1889) 24 Q.B.D. 103 : (59 L.J.Q.B. 46); Guardians &c. of WestHam v. Churchwardens &c. of Bethnal Gree, (1895) 1 Q.B.D. 662). But thequestion that is material for my purposes is as to the position of the suit betweenthe date of the judgment and the completion of the decree. Is the suit aliveduring this intervening period or is it at an end

42. Ever since the observations of Jessel M. R. made incourse of argument in In re St. Nazaire Company, (1879) 12 Ch. D. 88 : (41 L.T.110) at p. 91 it is well established that before an order is drawn up it iswithin the power of the Judge to reconsider it and if thought proper to alterit. In In re Suffield and Watts, (1888) 20 Q.B.D. 693 : (58 L.T. 911) LordEsher M.R. at p. 696 and Lopes L.J. at p. 698 stated the principle in anegative form, namely that after the Judge had once made an order and it hadbeen drawn up and perfected he had no jurisdiction to alter it. This byimplication amounts to the statement that if the order has not been drawn upand perfected it may be reconsidered. Fry L.J. at p. 697 put the matter in bothways:

In re St. Nazaire Co, : (1879-12 Ch. D. 88 : 41 L.T. 110)shows that, when an order or judgment of the High Court has once beenperfected, the Court has no jurisdiction to alter it. So long as the order hasnot been perfected the Judge has a power of reconsidering the matter, but, whenonce the order has been completed, the Jurisdiction of the Judge over it hascome to an end.

This statement of the law was again affirmed by the Court ofappeal in Millensted v. Grosvenor House (Park Lane) Ltd. (1937) 1 K.B. 717 :(1937 1 All. E.R. 736). The same principle has been followed by this Court onthe original side and on appeal from it. (See Sarupchand Hukamchand v. MadhoramRaghumall, : (1924) 28 C. W.N. 755 : (A.I.R. 1925 Cal. 83) [LQ/CalHC/1924/9] (Buckland J); Ramjiban Kedarnath v. Akhil Chandra Poddar, (1934) 39 C.W.N. 1196: 62 C.L.J. 377 C.A. (Lort-Williams J. & Jack J.); In the matter of SteelConstruction Co. Ltd., (1935) 39 C.W. N. 1259 (McNair J.) and Ritchson v.Ritchson, : (1938) 42 C.W.N. 317 : I.L.R. (1938) 2 Cal. 22 :(A.I.R. 1938 Cal. 321) [LQ/CalHC/1937/279] (Panckridge. J.) It follows from these decisions thatuntil and unless the decree is perfected i.e. drawn up, signed and filed theJudge has seisin of the matter and can reconsider his decision. How can theJudge continue to have seisin of the suit if the suit had terminated by thedelivery of the judgment in the sense in which that expression has been definedin the Code There is, therefore, no escape from the conclusion that the suitis not terminated until the decree is perfected, i.e., completed and filed. AsI have said, as soon as the decree is perfected it takes effect, as regards therights and liabilities of the parties, from the date of the judgment which isusually the date put in the decree but the operative effect of the decree onthe rights of the parties is one thing and termination of the suit is adifferent thing. The proceedings for drawing up and completing the decree areproceedings in the suit and the suit is terminated only when the decree isperfected in the sense I have mentioned, although once perfected it operatesretrospectively, as regards the rights and liabilities of the party, from thedate of the judgment, In this connection reference may also be made to thecases of Bai Divali v. Shah Vishnav Manordas, (1909) 34 Bom. 182 : (4 I.C. 829)and Sakharam Vishram v. Sadashiv Balshit, (1913) 37 Bom. 480 [LQ/BomHC/1913/13] : (19 I.C. 894) whereit has been held that until the decree is drawn up there is no decree fromwhich there may be an appeal. Reference may also be made to the significantdifference in the language of Arts. 84 and 182, Limitation Act. The startingpoint of limitation under Art. 182 is the date of the decree or order, althoughthe decree or order may have been perfected on a later date but that under Art.84 is the date of the termination of the suit or business. It is true that thewords "the date of the decree or order" would have been inappropriatewith respect to "business" but the Legislature might have easily madethe time run from "the date of the decree in the suit or the date of thetermination of the business."

43. On a consideration of the provisions of the Code and ofour Rules and on general principles underlying the cases mentioned above I ambound to conclude that for the purposes of Art. 84 a suit terminates only whenthe decree finally determining the rights and liabilities of the parties to thesuit is perfected, i.e., drawn up, signed, sealed and filed of record in thesuit. It is only after the decree is so perfected that certified copies can beobtained for purposes of other or subsequent proceedings, namely execution orappeal or review.

44. Mr. Banerjee argued that if such construction were putupon Art. 84 then the attorney would have to file his suit against the clientfor costs up to the decree and go on acting for the client in the furtherproceedings and would have to file further suits for subsequent costs. Article84 gives 3 years time and in a normal case all proceedings are likely to beover within that time. Further in actual practice if the attorney is driven toa suit for costs up to the decree it is more than likely that he will get himselfdischarged with the leave of the Court and the question of his acting infurther proceedings will not ordinarily arise. Finally if there be furtherproceedings the attorney will be entitled to remuneration on the completion ofthose proceedings and not before. Therefore, there will not be very many suits.To give effect to Mr. Banerjees argument will be to inflict a much greaterhardship on the attorney for then the client will be able to make the attorneywork until the completion of all proceedings without any payment in themeantime unless the attorney gets himself discharged with the leave of theCourt.

45. It now remains to be seen whether the conclusion I havearrived at militates against any of the decisions of the Indian Courts whichhave been brought to my notice.

46. In Dwarkanath Moitra v. T.J. Kenny, (1866) 5 W.R.(S.C.R.) 1 and Kashinath Roy Chowdhury v. Ishun Chandra Mookerjee (1866) 5 W.R.(C.R.) 297 it was held that a pleaders suit for remuneration was governed bycl. 9 of S. 1, Limitation Act of 1859. In the first mentioned case it was heldby Peacock C.J. and Jackson J., that if there was no express contract makingprovision for the time at which payment was to be made the cause of action inrespect of conducting or defending a suit accrued when the decision was passedin the suit. This decision proceeds on the lines of the English cases that asuit terminates by judgment. The question whether the suit terminates by themere delivery of the judgment or upon the completion of the decree which is thequestion before me did not arise and was not dealt with in that case.

47. The case of Narayana Chetti v. Alfred Champion, (1883) 7Mad. 1 came before the Madras High Court on an application for revision underS. 622, Civil P.C. of 1882. There the plaintiff had acted as attorney for thedefendant in an appeal. The decree in the appeal was dated 5th January 1878,the plaintiff as solicitor was served with a notice from the solicitor for theother party intimating that a date had been fixed for taxation of that partyscosts. The plaintiff communicated with the defendant and was instructed not toappear on the taxation. The plaintiff then filed his suit for costs on 22ndFebruary 1881. The suit was decreed by the lower Courts. On the defendantsapplication for revision it was held by the High Court that the suit was notbarred by limitation. It was pointed out that the costs had to be taxed andinserted in the decree and the plaintiff continued as the attorney on recordand was bound on receipt of service of the notice of taxation to communicatewith the client and take instructions and protect the clients interest at thetaxation. The learned Judges concluded by saying that it could not be said thatthe suit had terminated in the sense of Art. 84 until the costs were insertedin the decree and the decree was issued. Very probably the rules of the MadrasHigh Court then in force required that after the judgment the costs must betaxed and inserted in the decree before it was issued. Be that as it may, theobservations of the learned Judges clearly indicate that the decree could notissue until the costs after taxation were inserted therein. The point of thisdecision appears to be that the decree could not be regarded as completed orperfected until the taxed costs were inserted in the decree and that the decreenot being perfected the suit could not be treated as terminated within themeaning of Art. 84. I read this decision as establishing that it is only aperfected decree that can bring a suit to its termination and I respectfullyagree with it.

48. In Balkrishna Pandurang v. Govind Shivji, (1883) 7 Bom.518 the plaintiff acted as the pleader for the defendant in a suit. That suitwas decided on 29th November 1879 against the defendant. The plaintiff as suchpleader applied for and obtained copies of the judgment and the decree but itwas only on 27th February 1880 that he gave them to the defendant. Thereafteron 27th January 1883 the plaintiff filed his suit for the balance of his remuneration.The subordinate Judge referred the question of limitation to the High Courtunder S. 617, Civil P.C. Quoting and adopting the observations of Blackburn J.,in Harris v. Quine ((1869) 4 Q.B. 653 : 38 L.J.Q.B. 331) namely that "thetermination of a suit is when judgment is given in the Court in which theaction is commenced" the learned Judges of the Bombay High Court held thatas the suit had been instituted more than three years after the terminationthus defined of the suit in which the plaintiff had been retained by thedefendant, the suit was barred by limitation. I have already explained that theexpression "judgment" is used with reference to the decision of thecommon law Courts in the same sense as the word "decree" is used withreference to the decision of the chancery Courts and that so understood theobservations of Blackburn J., only establish that it is the decree which bringsthe suit to its termination. The Bombay decision simply follows theobservations of Blackburn J., and there is no reason to think that the BombayHigh Court used the word "judgment" in any different sense. Furtherin this case, as in Harris v. Quine, ((1869) 4 Q.B. 653 : 88 L.J.Q.B. 331) thequestion whether the suit is terminated by the mere delivery of the judgment i.e.the statements given by the Judge of the grounds of his decision or by thecompletion and perfecting of the decree which finally determines the rights andliabilities of the parties to the suit was not raised or considered. Indeed,seeing that the plaintiff had made over the copies of the judgment and thedecree to the defendant on 27th February 1880 it is quite clear that the decreehad been perfected some time before that date and it may well be that it was soperfected more than three years before the date of the filing of the suit forcosts and that that is why there was no reason in that case, to make anydistinction between the judgment and the decree as the starting point oflimitation. There is no reason to think that the Bombay High Court used theword "judgment" deliberately to make a distinction between judgmentand decree. If the Bombay case is understood to mean that a suit is terminatedby judgment in the sense of a decree then there is no conflict between it andthe previous Madras case. In this view this case, therefore, cannot be regardedas a decision militating against the conclusion I have arrived at. If, on theother hand, this case is to be read as laying down the proposition that a suitis terminated by the "judgment" as opposed to the "decree"I respectfully differ from it.

49. The observations of Trevelyan J. inAdministrator-General of Bengal v. Chunder Kant Mookerjee, (1895) 22 Cal. 952(Note) appear to me to support the view I have expressed herein.

50. In Watkins v. Fox, (1895) 22 Cal. 943 the plaintiffswere retained by the defendants as their solicitors for the purpose of anapplication under S. 24 of Act (15 [XV] of 1859) for the revocation of apatent. That application was dismissed on 30th January 1888, the order of dismissalwas completed and filed on or about 20th February 1888. Thereafter theplaintiffs continued to act as solicitors for the defendant for opposing thetaxation of the costs of the other side. The last item of work done by them wason 7th September 1888. The plaintiffs filed their suit for costs on 7th April1891 i.e. more than three years after the date of dismissal of the applicationin which they acted as attorneys, "as well as of the filing of the orderof dismissal" but within three years after they did the last item of work.The defendants raised a plea of limitation. After referring to the Madras andthe Bombay cases Hill J., proceeded as follows:

....and the cases seem therefore to show that, althoughthere may be proceedings in the suit subsequent to the judgment or decree andthe suit may therefore still, in that sense subsist (for that, I take it, maybe inferred from S. 39), the point at which for the purposes of the LimitationAct the suit is to be taken to terminate is the issue of the decree (accordingto the Madras Court) or the giving of judgment (according to the Bombay Court).By judgment in the decision of the latter Court I presume is meant thejudgment of the Court in the sense in which the term is used in the Code ofCivil Procedure. But whether the issue of the decree or the giving of judgmentbe the proper starting point for the running of the period of limitation, wouldnot make any practical difference in the present instance, for neither of thesethings (taking the order of the Court to be equivalent to a decree) appears tohave taken place within three years before the institution of this suit.

Referring to the contention that the suit could not betreated as at an end because the taxation was going on, Hill J. said:

In support of his contention Mr. Dunne relied upon theMadras case cited above for the purpose of showing that, while the taxation ofcosts was proceeding, the suit could not be said to have ended. But while Idoubt with much deference whether the rule laid down in that case can besupposed on principle, I think at all events that it is inapplicable to thepractice prevailing on the Original Side of this Court and that I ought ratherto follow the rule laid down in Bombay.

With great respect to Hill J., I do not see why it should beassumed that the Bombay High Court used the word "judgment" in thesense in which it is used in the Code and not in the sense of a decree. Thereis no reason to think that the learned Judges of the Bombay High Court usedthat expression in any sense different from that in which Blackburn J., usedit. For reasons already stated the word "judgment" means withreference to the decisions of the common law Courts what the word"decree" means with reference to the decisions of the chanceryCourts. If Blackburn J. used the word "judgment" in the sense of adecree, it must be held that the learned Judges of the Bombay High Court alsoused the word judgment in the same sense. I have said there was no necessityeither in Harris v. Quine, ((1869) 4 Q.B. 653 : 38 L.J.Q.B. 331) or in theBombay case to make any distinction between judgment and decree for fixing thestarting point of limitation. If the Bombay decision is read and understood inthis way then there is really no conflict between the Madras case and theBombay case. In my humble opinion Hill J. overlooked this aspect of the matter.Again, with great respect to Hill J. it appears to me that His Lordship missedthe real point of the decision in the Madras case. Apparently according to therules or practice of that Court the costs had to be taxed and the taxed costshad to be inserted in the decree before the decree was issued. In other wordsin Madras the taxation of costs was anterior in point of time to the completionof the decree and was a part of the process for perfecting it and that untilthe taxed costs were inserted in the decree the decree could not be issued andconsequently until the decree was perfected the suit was not at an end. Theratio decidendi of the Madras case, as I understand it, is that the suit didnot terminate because the decree which finally determined the rights andliabilities of the parties had not been perfected and not simply because thetaxation had not been completed. The question of completion of taxation was materialin that case because without the taxed costs being inserted in the decree, thedecree could not be said to have been perfected. According to the practice ofour Court on its original side there is no provision for inserting the taxedcosts in the decree and indeed there can be no taxation of costs under thedecree until the decree is perfected by being filed of record. Therefore herethe taxation of costs is not a part of the process for perfecting the decree.It follows, therefore, that in this Court taxation of costs has nothing to dowith the completion of the decree. The suit terminates as soon as the decree isperfected and taxation begins later on and, therefore, the proceedings fortaxation have no bearing on the question of the termination of the suit and theactual decision of Hill J. can properly be supported on this ground and not onthe ground of any assumed distinction between the Madras case and the Bombaycase on which he founded his decision. The practice of the Bombay High Court, Iunderstand, is similar, and, therefore, there also the suit terminates when thedecree is perfected and subsequent taxation of costs does not affect thatposition. I am unable to appreciate that the Bombay decision if it is correctlyread and understood, militates against the Madras case. The actual decision ofHill J., in Watkins v. Fox, (1895-22 Cal. 943) [LQ/CalHC/1895/47] really supports the conclusion Ihave arrived at, namely that a suit comes to an end when the decree isperfected and the time begins to run and the subsequent taxation of costs hasno bearing on the construction of Art. 84. In that case the solicitors suitfor costs was filed more than three years after the order of dismissal of theapplication for revocation of the patent had been perfected and it was rightlyheld, if I may say so with respect, that the claim was barred. I accept thedecision of Hill J., as correct but not the reasonings on which he based it.

51. In Makhan Lal Mukerjee v. Nalin Chandra Gupta, (1908) 35Cal. 171 the plaintiff acted as the attorney for the defendant in a suitinstituted in 1899 and continued to act as such until by an order made on 1stMay 1902 there was a change of attorney from him to another attorney. Thatorder did not direct any payment of costs to the plaintiff but only directedthat his costs be taxed. The plaintiff filed his suit for costs amounting toRs. 5955-14-0 on 27th May 1905. On a plea of limitation under Art. 84 havingbeen raised, Sale J. held that the order for taxation operated as a stay of anysuit for costs and that in computing the period the plaintiff would, under S.15, Limitation Act, be entitled to deduct the period between the submission ofhis bill for taxation and the issue of the allocatur. On appeal by thedefendant the Court in appeal reversed the decision of Sale J., and held thatan order for taxation did not operate as a stay of suit. This case, therefore,was not at all concerned with the question now before me. The followingobservations of Harrington J., at p. 175 may, however, be noted:

All the authorities show that the taxation of costs is not acondition which must be performed before an action on an attorneys bill may bebrought. It that is so, an order for taxation cannot affect the plaintiffsright to bring his action.

Where the attorney properly discontinues to act andthereupon an order is made for his discharge, the attorney comes within one ofthe exceptions to the general Common law rule and his cause of action arisesand time begins to run from the date of discontinuance. The taxation of costsis not a condition precedent to his cause of action. Likewise when the suit isterminated by the decree being perfected the attorney comes within anotherexception to the general rule and his cause of action arises from the date ofsuch termination of the suit and the taxation of his costs not being acondition precedent has nothing to do with his cause of action which hadalready arisen by reason of the termination of the suit. This, I apprehend, isthe reasonable implication of the above quoted observations of Harrington J. Sounderstood this in no way militates against the views I have expressed abovebut rather tends to support them.

52. The material facts in Atul Chunder Ghose v. LakshmanChunder Sen, (1909) 36 Cal. 609 : (2 I.C. 830) were as follows: In 1901 theplaintiff was retained by the defendants as their attorney in Suit No. 882 of1896 and acted as such in that suit as well as in the appeal therefrom beingAppeal No. 29 of 1903. It does not appear from the report when the decree inSuit No. 882 of 1896 was made or perfected or when the decree in the appeal wasmade or perfected. It appears, however, that certain parties including GocoolChunder Sen, one of the clients were by the decree in appeal directedpersonally to pay certain costs of the appeal to the appellant. The appellantscosts were taxed and an allocatur was issued on 6th July 1905. The plaintiffsown bill of costs was taxed as between him and his client on 16th September1907. The plaintiff filed this suit for the balance of his taxed costs on 4thJuly 1908. The suit was contested by Gocul. The first ground urged was that hehad revoked the authority of the attorney on 13th January 1903 and therefore hewas not liable for any costs after that date and that the costs incurred beforethat date were barred. The Court held against Gocul on facts as well as on theground that by reason of S. 39 of the Code (now O. 3 R. 4) he could not withoutleave of the Court revoke the authority of the attorney. The next contention wasthat at any rate the costs incurred more than three years prior to theinstitution of the suit by the attorney were barred. The question was when didthe cause of action arise Harrington J, referred to Coburn v. Colledge :(1897-1 Q.B. 702 : 66 L.J.Q.B. 462) as establishing that the plaintiffs causeof action arose when the work for which he had been retained was completed andto Lady de La Pole v. Dick, (1885-29 Ch. D. 351) as an authority for theproposition that the authority of the attorney might continue after judgment.His Lordship then concluded:

In the present case, I think in fact the attorneysauthority did continue after judgment and covered the taxation of costs,because the decree directs that certain parties, amongst others Gocool, shallpersonally pay to the appellants 6-12ths of the costs of the appeal to be taxedon scale No. 2. Until taxation, therefore, the amount payable by the clientunder the decree could not be ascertained. The solicitors retainer, therefore,covered the taxation of these costs which took place early in July 1905, andwas not at an end until the issue of the allocatur on the 6th of that month.Until the allocatur issued, the amount payable by the client was notascertained and the work was, therefore, not completed.

Harrington J., held that inasmuch as the plaintiff did somework after 4th July 1905 and as his suit for costs was filed on 4th July 1908the suit was not barred and the plaintiff was entitled to recover the balanceof his costs. I respectfully agree with the learned Judge that the authority ofthe plaintiff as attorney continued after the decree in the suit and even afterthe decree in the appeal and also that the general rule is that the attorney isentitled to payment of his remuneration after the entire work for which he wasretained was completed. It appears to me, however, that the learned Judgemissed the point that the case of Lady de La Pole v. Dick: (1885-29 Ch. D. 351)was concerned only with the question of the duration of the attorneys authorityand had no bearing on the question of the accrual of the attorneys cause ofaction for costs. The learned Judge also overlooked the fact that Coburn v.Colledge : (1897-1 Q.B. 702 : 66 L.J.Q.B. 462) did not deal with the retainerof an attorney in an action and that that case only followed the general rulethat an attorney was entitled to his remuneration on the completion of theentire business for which he had been retained. Harrington J., apparently didnot advert to the point that in the case of an attorney retained in an actionhe is entitled, as and by way of exception to the general rule, to hisremuneration in certain exceptional circumstances and that, therefore, the casebefore him was governed by one of those exceptions rather than by the generalrule. An attorneys retainer in an action is an entire contract and theattorney is not ordinarily entitled to any remuneration until the entirecontract is performed, nevertheless as an exception to that general rule theattorney has been held entitled to claim his remuneration on the termination ofthe suit by a perfected decree, In this case on the decree in the suit havingbeen perfected the plaintiffs cause of action for his remuneration up to thedate of the decree arose. There was, however, an appeal. According to theEnglish decisions what is prima facie a termination of the suit ceases to be soon the filing of the appeal, for the appeal is but a continuation of the suit(See Per Blackburn J., in Harris v. Quine : (1869-4 Q.B. 653 : 38 L.J.Q.B. 331.)The question whether in view of S. 2(10) of our Limitation Act providing that"suit" does not include an appeal or application this principle ofEnglish law applies in India was not raised in this case and I express noopinion thereon. Assuming that in India an appeal may be treated as acontinuation of the suit, surely in the case before Harrington J., the suit hadterminated by the decree in the appeal having been perfected and theplaintiffs cause of action accrued then and there. The learned Judgeoverlooked the distinction between the termination of the attorneys authorityand the termination of the suit. The suit terminated by the perfected decreeand the attorneys cause of action for costs accrued on such termination of thesuit although the attorneys authority continued and he was bound, unlessproperly discharged, to continue to act for the client. The termination of thesuit and the accrual of the attorneys cause of action do not appear to me tobe incompatible with the continuation of the attorneys authority. In thesecond place the reasonings adopted by Harrington J., do not appear to me tosupport his conclusion. According to his Lordship the attorneys authoritycontinued after judgment i.e., the decree and his cause of action arose whenthe work for which he had been retained was completed. On this reasoning theauthority of the attorney continued even after the taxation of the appellantscosts for the retainer covered even the application for execution of the decreefor costs. If the attorneys cause of action would arise only on the completionof the entire business covered by the retainer then the attorney would have nocause of action, if the attorney was retained by the successful party, untilthe fruits of the decree had been realised or if he was retained by theunsuccessful party, until the client needed his protection against execution.The plaintiffs authority as attorney did not come to an end on the taxation ofthe appellants costs and issue of the allocatur in favour of the appellant butcontinued even after that and therefore it was illogical for the learned Judgeto fix the date of the allocatur as the starting point of limitation. In thethird place this decision of Harrington J., appears to me to be inconsistentwith the logical implication of his own observations in the earlier case ofMalkhan Lal Mukerjee v. Nalin Chandra Gupta, (1908-35 Cal. 171) to which I havealready referred. For reasons stated above I am unable, in spite of my utmostrespect for the learned Judge, to accept his decision as correct.

53. The last case on the subject to which reference has beenmade is that of Sm. Attormony Dasi v. Ramesh Chunder Bose, :(1930) 52 C.L.J. 197 : A.I.R. 1930 Cal. 651 [LQ/CalHC/1930/207] : (129 I.C. 787 (F.B.)). That casearose out of an application by the attorney for an order for payment of histaxed costs under Chap. 38, R. 59 (now Chap. 38, R. 48). In that case theattorney acted as attorney for the plaintiffs in administration suit filed on2nd December 1904. The preliminary decree was made on 23rd January 1906 and thefinal decree was made on 17th December 1912. There were appeals and furtherenquiries were directed and eventually the final decree was made on 8th May1916. On 17th September 1921 the attorneys bill of costs was lodged fortaxation and on 26th June 1928 the bill was finally passed and an allocatur wasissued. The attorney thereafter applied for an order for payment of his taxedcosts. The clients opposed and contended that in the facts and circumstances ofthe case the Court should, in exercise of its discretion, refuse to make anyorder for payment and should refer the attorney to a suit. Panckridge J.however, went into the facts and made the order. On appeal the majority of thelearned Judges held that in the facts and circumstances of the case no summaryorder for payment should have been made and reversed the decision of PanckridgeJ., and relegated the attorney to a regular suit. It was urged beforePanckridge J., that the Court should take into account the fact that if theattorney were to file a suit such suit must be dismissed as being time barred.It is with regard to this argument that Panckridge J., made the followingobservations:

It appears to me, however, that this is not an aspect of thematter with which I need concern myself since in my judgment it is clear thatin a suit brought by the attorney Attormoni and Ashutosh would not be in aposition successfully to plead the provisions of the Limitation Act.

By Art. 84 of that Act the date from which the three yearsperiod of limitation provided by the article begins to run is the date of thetermination of the suit or business. I am asked to hold that the final decreeof 8th May 1916 is the termination of this suit within the meaning of thearticle. To do so would, I think, be patently absurd; in many proceedings ofwhich administration suits are an example, the so-called final decree is veryfar from being the termination of the suit. Moreover, Atul Chunder Ghose v.Lakshman Chunder Sen appears to me an authority for the proposition that theperiod of limitation in an attorneys suit for taxed costs does not begin torun until at the earliest the issue of the allocatur.

With great respect to Panckridge J., I am unable tosubscribe to the above quoted observations. In the first place the learnedJudge did not analyse and consequently failed to note that the actual decisionin Atul Chandra Ghose v. Lakshman Chunder Sen, (1909-36 Cal 609 [LQ/CalHC/1909/79] : 2 I.C. 830)could not be supported on the reasonings on which Harrington J., based it.Panckridge J., apparently accepted the correctness of that decision withoutScrutiny and based his own observations thereon. In the second place it was notnecessary for him to go into the question of limitation and express a definiteopinion thereon. In the third place the learned Judge overlooked thedistinction between the termination of the suit by the decree and thetermination of the attorneys authority by the completion of the entire workfor which he had been retained. The attention of Panckridge J., does not appearto have been drawn to the exceptions to the general rule as to the retainerbeing an entire contract. The learned Judge did not advert to the principlethat the final decree even in an administration suit constitutes a definitebreak giving rise, by way of exception to the general rule to an enforceableclaim of the attorney for his costs. The learned Judge did not note that postdecree proceedings, e.g., execution proceedings are not necessarily proceedingsin the suit and that such proceedings arise only after the termination of thesuit by the decree when it is completed and filed.

54. From what I have stated so far it is clear that theconclusion I have arrived at on a consideration of the judicial authorities,namely that a suit comes to its termination upon the decree finallyadjudicating the rights and liabilities of the parties being completed andperfected and that as exception to the general rule, the attorneys cause ofaction for his remuneration accrues on, and the statute begins to run againsthim from the date of such termination, does not really militate against anyjudicial decision of the Indian High Court except the decision of Harrington J.in Atul Chunder Ghosh v. Lakshman Chunder Sen, (1909-36 Cal. 609 [LQ/CalHC/1909/79] : 2 I.C. 830)and the observations of Panckridge J. in Sm. Attormony Dasi v. Romes ChunderBose, (: 52 C.L.J. 197 : A.I.R. 1930 Cal. 651 [LQ/CalHC/1930/207] : 129 I.C. 787(F.B.)). For reasons stated above I respectfully dissent from those learnedJudges. In my judgment suit No. 891 of 1931 in which the plaintiff before mewas retained by the defendant as his solicitor terminated on 4th February 1942when the final decree therein was perfected by being filed on record in thatsuit and that the present suit which was instituted on 31st January 1945 is notbarred by limitation under Art. 84, Limitation Act, This issue must, therefore,be answered in the negative.

55. Re: Issues 1(b) and 1(c). - The plaintiff has in hisplaint also sought to get over the bar of limitation, if any, by claiming thatin computing the period of limitation the period between 15th August 1944 and24th January 1945 when he was prosecuting his application under Chap. 38, R. 48for an order for payment against the defendant should be deducted. If I amright in my answer to Issue 1(a) then these issues will not arise. As, however,the matter may not rest here it is right that I should record my findings andconclusions on these issues as well.

56. These issues are directed to ascertaining whether theplaintiff is entitled to the benefit of S. 14, Limitation Act. Sub-s. (1) of S.14 provides that in computing the period of limitation prescribed for any suit,the time during which the plaintiff has been prosecuting with due diligenceanother civil proceeding, whether in a Court of first instance or in a Court ofappeal, against the defendant, shall be excluded, where the proceeding isfounded upon the same cause of action and is prosecuted in good faith in aCourt which, from defect of jurisdiction, or other cause of a like nature, isunable to entertain it. That the plaintiffs application for an order forpayment was a civil proceeding in a Court of first instance cannot for a momentbe doubted. In order to come within the section the only other things which theplaintiff must establish are: (i) that the proceedings were founded upon thesame cause of action; (ii) that the plaintiff prosecuted those proceedings (a)with due diligence, and (b) in good faith; and (iii) that the Court from defectof jurisdiction or other cause of a like nature was unable to entertain it.

57. Mr. Sinha contended that this suit is not founded on thesame cause of action in that in this suit the plaintiff is claiming interest onadvances and drew my attention to para. 14 of the plaint. I do not think thereis any substance in this contention. The cause of action of the plaintiff inthat application and in this suit appears to me to be identical. This cause ofaction arose out of the retainer and the work done and advances made thereunderand the remuneration due to him. The claim for interest on advances may be anadditional relief but this flows from the same cause of action. This additionalclaim does not alter the cause of action. The difference in the language ofsub-s. (1) and sub-s. (2) of S. 14 is significant. Section 14(1) requires thetwo proceedings to be founded on the same cause of action while S. 14(2)requires that both the proceedings must be for the same reliefs.

58. Mr. Sinha next urged that the plaintiff did notprosecute that application with due diligence. He pointed out that though thesummons was taken out on 15th August 1944 it was made returnable on 22nd August1944 and not two days after the date of the summons as would have been doneunder the rules. It appears from the summons that it was originally madereturnable on 17th August 1944 but the returnable date was changed to 22ndAugust 1944 by the Master presumably as the defendant resided outside thejurisdiction of this Court. The initials of the Master appear against thealteration. Therefore the plaintiff did not waste 5 days. The affidavit inopposition was filed by the defendant on 26th August 1944 and the affidavit inreply was filed on 29th August 1944. The annual vacation started on 1stSeptember 1944 and the Court re-opened on 13th November 1944. The complaint isthat after the re-opening of the Court in November 1944 the plaintiff did notbring on the summons to a hearing until 24th January 1945, From the fiatsendorsed on the summons it appears that every time the summons was adjourned itwas so adjourned with the consent of both parties. It is true that theplaintiff has to establish his diligence, but the party who has consented tothe adjournments can hardly be permitted to rely on them as evidence of want ofdiligence. In any event the very fact that the defendant consented to theadjournments may well be taken as prima facie evidence that the adjournmentswere necessary or at any rate were not without good cause. The consent of thedefendant ought prima facie to be regarded as negativing any want of diligence.Finally we are all aware that chamber applications are frequently adjournedfrom time to time to suit the convenience of counsel on both sides and it willbe unreasonable and unjust to impute want of diligence to the parties for suchadjournments. In my judgment I am not prepared to hold that the plaintiff wasguilty of any laches or want of diligence in the matter of prosecuting thatapplication.

59. Mr. Sinha pointed out that the conduct of the plaintiffindicates that he was not acting in good faith. As soon as the allocatur wasissued the plaintiff who was not a party to the suit applied for execution ofthe decree and obtained an interim attachment. Finding that the executionproceedings were misconceived and were bound to be dismissed the plaintiff madethe application for payment order and again obtained an interim order. All thisshows that the plaintiff was out to harass the defendant. The terms of settlementembodied in the final decree provided that the defendant would be at liberty topay all his costs out of the estate of Madhab Mohini Dassi. The plaintiffsapplication for execution was, I apprehend, dismissed because the decree onlygave liberty to the defendant to pay all his costs and did not expressly andunconditionally direct him to pay the costs to the plaintiff. It appears to methat the application for execution was made by the plaintiff in the belief thatit made provision for the payment of his costs and to ensure prompt recovery ofhis dues. It was certainly a misconceived application in view of the languageof the terms of settlement but I am not prepared to say that the circumstancesin which it had been made did not at all warrant the considerable apprehensionthat the plaintiff had about his being unable to realise his dues. In any case,even if that application was misconceived and was made in bad faith, it doesnot follow at all that the application for payment order must also have beenmade in bad faith. Enforcement of a claim for payment against a personinevitably causes a certain amount of inconvenience and harassment to thedebtor but it does not prove want of good faith in the creditor.

60. The last branch of the arguments on this issue wasdirected to the point whether the Court from defect of jurisdiction or othercause of a like nature was unable to entertain it. That this Court was theproper Court before which the plaintiffs application under chap. 38, R. 48could be made was not disputed. The only question that was argued was whetherthis Court was, from defect of jurisdiction or other cause of a like nature,unable to entertain it. A large number of judicial decisions bearing on thequestion were cited before me. I do not consider it necessary to deal with thecases individually. The result of the authorities on this point has been thussummarised in Chitaleys Limitation Act, Vol. 1, p. 538:

The principle of the section is the protection against thebar of limitation of a person honestly doing his best to get his case tried onthe merits, but failing through the Court being unable to give him such atrial; and the principle is applicable not only to cases where the personbrings his suit in the wrong Court, but also where he brings his suit in theright Court but is nevertheless prevented from getting a trial on the merits bysomething, which, though not a defect of jurisdiction, is analogous to thatdefect.

61. Mr. Sinhas argument was that the plaintiffsapplication was not dismissed because of any defect of jurisdiction or othercause of a like nature. His contention was that chap. 38, R. 48 of our Rulesauthorised the Court either to make an order for payment or to relegate theattorney to a regular suit. Therefore, whichever order was made, it was made onthe application. In other words the Court had jurisdiction to entertain theplaintiffs application and did entertain the application and made an orderthereon which it was competent to make and, therefore, it was not a case of theCourt being unable to entertain the application and, therefore, S. 14(1),Limitation Act, had no application. This leads me to consider the true meaning,scope and effect of R. 48 which is expressed in the following terms:

48. An attorney, where he has taxed his bill of costsagainst his client, may apply in Chambers on summons for an order against hisclient or the legal representatives of such client for payment of the sumallowed on taxation or such sum as may then remain due. The Judge on hearingthe summons may make such order or refer the parties to a suit. Such orderwhere made may be executed under O. 21 of the Code as a decree for money.

It will be observed that it is left entirely in thediscretion of the Court to make an order for payment or to refer the parties toa suit. The attorney is not entitled, as of right, to have his claimadjudicated upon on its merits by the Court. The language is that the Court maymake such order or refer the parties to a suit. There may be a contention thaton an application under this rule the Court cannot reject the claim for it isauthorised only to make "such order" i.e., an order for payment or torefer the parties to a suit. It is, however, not necessary to pursue thisextreme contention and I do not express any final opinion on it. I proceed onthe basis that the Court has a discretion to make an order for payment or referthe parties to a suit. When the Court does not make an order for payment butrefers the parties to a suit, what is implied in such order It certainly doesnot imply a finding that the attorneys claim does not exist, for if the Courtfinds that the, claim does not exist, there can be no point in referring theparties to a suit. On the contrary the order referring the party to a suitimplies that the Court will not, in the circumstances of the case, go into themerits of the case or try the case. What is the underlying reason for which theCourt is authorised to refer and does refer the parties to a suit It is thatthe case is not, having regard to the allegations and counter-allegations andthe complicated nature of the issues, a fit case for being dealt with in asummary application on affidavits. The Court may, I imagine, take evidence butis not bound to do so. It is clear, therefore, that the jurisdiction conferredon the Court by this rule is a jurisdiction of a very limited nature. If thecase is a fairly clear one and free from any difficulty the Court may exercisethis summary jurisdiction. The provision for referring the parties to a suitonly emphasises that the Court has a discretion not to make an order forpayment in exercise of this summary jurisdiction and it has been inserted toindicate and ensure that the omission to make an order for payment may not betaken as tantamount to an adverse adjudication on the attorneys claim on itsmerits. When, therefore, in a complicated case the Court does not make an orderfor payment on an application under this rule and refers the parties to a suit,the Court in effect tells the parties that its jurisdiction being what it is itis unable to try and adjudicate upon the claim on its merits, or in otherwords, that its jurisdiction is so limited as not to permit it in thecircumstances to make an order for payment. The order referring the parties toa suit is an order made on the application only in the sense in which an orderfor return of the plaint under the Code may be regarded as an order in thesuit. It is nothing more than an indication that the Court is unable toentertain the application. When the plaintiffs application came before me Iexpressed my opinion in my judgment (Ex. L) as follows:

I have been through the affidavits and on reading theaffidavits it appears to me that this application raises various disputedquestions of fact. I do not consider it right, on a summary application of thisnature, to undertake any investigation as to the correctness or otherwise ofthe disputed facts. It seems to me that this is a proper case where theattorney should be relegated to a suit. In these circumstances I decline tomake an order for payment in this application. The attorney will enforce hisrights by taking other appropriate proceedings.

It is quite clear that the plaintiffs rights were notinvestigated into on that application, because it could not be done on thatsummary application. In other words because of the limited nature of Courtsjurisdiction the Court could not make an order for payment on that application.It is, therefore, by reason of an infirmity or defect of jurisdiction that theorder for payment could not be made. This defect of jurisdiction was in no waybrought about by the plaintiff or any absence of diligence or good faith on hispart and the plaintiff therefore comes within the principle of S. 14. The caseof Baijnath Ramgopal v. Hem Chunder Bose, 10 C.W.N. 959 proceeds on this basisand appears to be in point. On a consideration of the authorities and taking abroad view of the substance of the matter I cannot but hold that the Court wasunable by reason of defect of jurisdiction or other cause of a like nature toentertain the plaintiffs application for an order for payment. The orderrelegating the plaintiff to a suit was nothing more than an acknowledgment ofthis defective jurisdiction. In this view of the matter I hold that theplaintiff is entitled to the benefit of S. 14, Limitation Act.

62. Mr. Sinha urged that even if S. 14 applied the plaintiffwas still out of time. The final decree was made on 25th August 1941 and,therefore, according to Mr. Sinha, the plaintiffs suit should ordinarily havebeen filed on 25th August 1944. The plaintiff, however, took out a summons on15th August 1944 returnable on 22nd August 1944. Mr. Sinha argued thataccording to the recent decision of the Court on appeal in Daga v. Daga,: (1943) 47 C.W.N. 450 : (A.I.R. 1943 Cal. 257) [LQ/CalHC/1943/26] theapplication must be taken as having been made on 22nd August 1944. The fullperiod of limitation had only three days to run from that date. The running oftime stopped on 22nd August 1944. That application was disposed of on 25thJanuary 1945. Therefore time began to run again on and from 26th January 1945.The three days that were in hand expired on 29th January 1945 and the presentsuit which was filed on 31st January 1945 was consequently two days out oftime. In the first place Mr. Sinha assumed that time began to run from the dateof the final decree. I have already said that the suit terminated on the finaldecree being perfected which was on 4th February 1942. Assuming that the dateof the decree namely 25th August 1941 was the starting point of time, itappears that on 15th August 1944 the plaintiff took out his summons returnableon 22nd August 1944 but on 15th August 1944 obtained an interim order on hispetition. Therefore even according to Daga v. Daga, (:1943-47 C.W.N. 450 : A.I.R. 1943 Cal 257 [LQ/CalHC/1943/26] ) the application must be treated ashaving been made on 15th August 1944, for no interim order could be made unlessthe application had been made. In this view of the matter the running of timestopped on 15th August 1944 when there were yet ten days left in hand. Theplaintiffs application was disposed of on 25th January 1945 and, therefore, hehad ten days thereafter within which to file his suit. He filed his suit on3lst August 1945 and the suit was, therefore, within time. I therefore answerissues 1(b) and 1(c) in the affirmative in favour of the plaintiff.

63. Re: Issues 2(a) and 2(b).- In para. 6 of the plaint ithas been stated that besides the party and party costs under the preliminarydecree the plaintiff received from or on behalf of the defendant the total sumof Rs. 8789-7-0 including Rs. 4819 7-0 from the public debt office by two moneydrafts. The plaintiff made over to the defendant Rs. 4819-7-0 being the amountof the said two money drafts receipt of which was acknowledged by the defendantby his receipt (Ex. J) After deducting Rs. 276-3-0 on account of some pettyexpenses and advances there remained a balance of Rs. 3693-13-0 in the bands ofthe plaintiff. This balance of Rs. 3693-13-0 is alleged in para 8 of the plaintto have been appropriated as follows : Rupees 1901-9-6 as the attorney andclient portion of the costs up to the preliminary decree in this suit, Rs.357-0-6 against the amounts double crossed on taxation and Rs. 677-9-6 againstthe attorney and client portion of the taxed costs of Suit No. 1084 of 1931referred to in the terms of settlement embodied in the final decree and thebalance of Rs. 757-9-6 towards and on account of the attorney and clientportion of the taxed costs of this suit subsequent to the preliminary decree.These appropriations are challenged. Mr. Sinha relying on Damodar Das v. Morgan& Co., : 1933-60 Cal. 1442 [LQ/CalHC/1933/207] : (A.I.R. 1934 Cal. 341) [LQ/CalHC/1933/207] , acase to which reference has already been made contended that the plaintiff asattorney had no right to appropriate moneys received in one suit towards hisclaim in respect of other works done by him. Besides there was no evidence thatany amount was due to the attorney for costs of Suit No. 1084 of 1931. Mr.Banerjee during his opening speech gave up Rs. 357-0-6 on account of theamounts double crossed and in his final address did not press his claim forappropriating Rs. 677-9-6 towards the costs of the other suit I have mentioned.The other two sums of Rs. 1901-9-6 and Rs. 757-9-6 have been appropriatedtowards the costs of this very suit These sums represent moneys received by theplaintiff from or on behalf of the plaintiff as costs of this suit and I do notsee why they should not be applied towards such costs, even if there has beenno previous appropriation. Therefore, Mr. Sinhas argument founded on S. 60needs no consideration. I, therefore, answer these issues in favour of theplaintiff only in respect of these two sums.

64. Re: Issue 3. - The claim of the plaintiff is Rs.12,988-15-0 for party and party portion of the costs and Rs. 18,890-11-3 forthe balance of attorney and client portion of the costs under the allocaturissued in his favour on taxation under the final decree. These two sums make upthe total sum of Rs. 31,879-10-3. There is no evidence before me as to thepetty expenses or advances for which the plaintiff has sought to deduct Rs.276-3-0. The plaintiff has also in his hands Rs. 357-0-6 which he deducted foramounts double crossed and Rs. 677-9 6 which he appropriated towards the costsof another suit, which two last mentioned amounts Mr. Banerjee gave up. Thesethree sums aggregating to Rs. 1310-13-0 must therefore be deducted from the sumof Rs 31,879-10-3. This will reduce the plaintiffs claim to Rs. 30-568-13-3.My attention has not been drawn to any provision of law under which interestmay be allowed to the plaintiff prior to the suit and, therefore, I allow nonefor that period. The claim of the plaintiff is for work done and moneysadvanced by him as attorney for the defendant. Even after the issue of theallocatur the defendant did not pay up his dues. In his written statement thedefendant made certain vague allegations about the attorney having receiveddiverse other sums but those allegations were struck out for want ofparticulars. In these circumstances I think it is a fit case in which under S.34 of the Code the Court will be justified in allowing interest pending suit.There will, therefore, be a decree in favour of the plaintiff for Rs.30,563-13-3 and interest thereon at 6 per cent per annum from date of suit upto the date of this decree. The plaintiff will get the costs of this suit onscale No. 2 and further interest at 6 per cent on the principal amount from thedate of the decree until realisation and on costs from the date of taxationuntil realisation. Certified for two counsel.

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Sarojendra Kumar Dutt vs. Purnachandra Sinha (11.08.1947 - CALHC)