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TMI Blog1920 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... years had elapsed since the completion of the work comprised in each of the four bills of costs. The order of Mr. Justice Back-land, as I construe it, merely directed that these bills of costs should be taxed and that any moneys over and above the amount which in any event would be sufficient to satisfy the Attorney's claim should be re-paid by the Attorney to the client at once. It in no way decided whether these bills of costs were in fact due from the client to the Attorney or not, but it did declare that to the extent to which these bills, when taxed, were due and payable the Attorney should have a right to a set off. In addition to the particular or active lien which an Attorney baa upon monies which have been recovered in a suit, the Attorney has a general or passive or retaining lien upon all moveables, deed, documents, and so forth that come into his hands unless they come for a specific purpose which would be inconsistent with the right of retainer; but Mr. Justice Buckland in this case has definitely decided, as appears more clearly from his judgment than from the form of the order, that with regard to the four bills of costs in question, the Attorney has not got the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar matter the Attorney was to look for his costs not to his client the prospective mortgager, but to the prospective borrower or mortgagor. If any real case of this sort was disclosed, I should except this particular bill from my order, but on the terms of the latter it is as plain as possible that there is no foundation for the contention that the Attorney was to act upon the footing that his client should not be liable for costs as distinct from the usual arrangement that the mortgagor shall pay the mortgagor costs incidental to the loan. The letter has been set out in the Attorney's affidavit. The affidavit in answer says merely this--- I am advised that the contention of the Raja that the bill of costs re Landora estate is not payable by him is valid. I have no fasts at all before me upon which I can be satisfied that there is in this matter any bona Me or substantial dispute as to the existence or non-existence of a special bargain between the Attorney and the client. No where do I find it stated that on sash and sash a date a verbal bargain was made to that effect; nowhere do I find in the affidavit of the respondent a case whose seriousness or bona fides can be investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph and the said Raja Narendra Lal Khan had on several occasions personally requested me that I should wait until his dues should be realised in the said execution cases and should take my costs out of the monies so realised, and in compliance with such request I did not take any seeps to enforce payment of my said costs. The answer to that and the only answer, in the affidavit of Ramrati Mukherjee, the agent of the client, is,--- I admit that the said Babu Hirendra Nath Dutt made over certain untaxed bills but have no knowledge that the said Raja Narendra Lal Khan personally requested him to wait for payment until his dues in the execution case be realised or that the said Raja suggested that the costs of the said Babu Hirendra nath Dutt should be deducted from the costs when realised. In that state of affairs, there is no denial, no statement even, that the client had informed the deponent that the statement of the Attorney, upon oath was untrue. I feel, therefore, both entitled and obliged to act upon the footing of its truth. 8. The first question whish arises, therefore, is, whether upon uncontradicted matter there is not an answer to any objection based upon limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations which are of a summary nature. The rule itself provides for an alternative relief, via, relief by suit, and such a suit can only be instituted within the time allowed under Article 84 of the Limitation Act and it, therefore, seems to me that in exercising discretion with regard to such applications, when a question of lapse of time is raised, it should be considered whether the time allowed by Article 84 ought not to be the time limit. 11. I observe that the learned Judge there used very guarded language and as his observation is only obiter this is not unnatural. I do not feel quite certain whether the inclination of his opinion was that the time limit should be imposed in all cases by an analogy drawn from Article 84 or that in every case, it was a question to be considered as a matter of discretion upon the special facts. In any case, Mr. Pugh for the respondent contends that any discretion, in order to be sound, must be so restricted and controlled by analogy from the Limitation Act; and he adds the further contention that, save on this condition, Rule 59 of Chapter XXXVIII of the Rules of this Court is ultra vires. It appears that the substance of the rule was introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 168 of the Limitation Act. The application was allowed though the matter was purely discretionary in its nature and although under the Code it would have been barred. I do not think it open to me on the authorities to lay down an abstract or a priori rule to the effect that it is necessarily wrong to exercise this discretion in a case where a suit could not succeed; any such rule must be laid down, if at all, by a higher tribunal. I think my discretion is to be exercised in the present state of the authorities upon the wall known lines and in the well established manner on the particular facts of each case. The Limitation Act , as was said in a case already cited [Chunilal Jethabhai v. Dahyabhai Amulakh 33 B. 14 : 9 Bom. L. R. 1186, being an Act of a restrictive character must be strictly construed. 13. In the present case, it appears from what I have said already that there is a special state of fasts strikingly in favour of the applicant. On an application such as this, I think it makes all the difference when a question of lapse of time is raised whether the Court is dealing with a position in which the facts are not really in controversy or with a matter as to which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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