TMI Blog1953 (3) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Judge took the view that the retainer of the attorneys of the first defendant company had terminated by reason of the company having gone into liquidation and therefore he refused to order the plaintiffs to pay the costs of defendant No. 1. The first question that has been urged before us by Mr. Gupte for the plaintiffs is that the appeal is not maintainable as the order of costs made by the learned Judge is not a judgment within the meaning of clause 15 of the Letters Patent. The appeal made by the first defendant company is an appeal against a decree passed by Shah J. The decree is to the effect that the suit be dismissed and that there should be no order as to costs of the first defendant company. The first defendant company obviously is not appealing from that part of the decree which dismissed the suit, but it is appealing from the other part of the decree which has deprived the first defendant company of its costs, and the question that arises is whether it is competent under clause 15 of the Letters Patent to a party, which has been aggrieved by a part of the decree which deals with costs, to appeal from that part. We should have said, apart from authority, that ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Bai Kasi. It is important to note that in that case Bayley, Ag. C.J. and Farran J. were hearing an appeal from the Original Side and the appeal was from an order of costs passed by Parsons J., and what was held by the court was that "Where the original court has made an erroneous order for costs under a misapprehension of fact and law, an appeal lies from such order under the Civil Procedure Code, although the appellant complains of nothing else but the order for costs so erroneously made." It is rather strange that neither at the Bar nor in the judgment any reference was made to clause 15 of the Letters Patent. The bar was strongly represented by such stalwarts as Mr. Lang, Mr. Inverrarity and Mr. Jardine, and in the judgment itself Bayley J. at page 682 says: "That being the case, an appeal, we think, lies under sections 220 and 540 of the Civil Procedure Code (which correspond to sections 35 and 96 of the present Code) against an order for costs so erroneously made, whether there is, strictly speaking, any principle involved in such an appeal or not." Therefore, the view taken by the learned Judge was that inasmuch as an order for costs was a decree, an appeal lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against the stay but appealed only on the question of costs, and Sir Amberson Marten at page 447 points out that as they were not in a position to set aside the learned Judge's order as to stay because there was no appeal from that order, they were not in a position to challenge the grounds on which he made that order for a stay, and therefore on a mere question of costs they could only challenge those grounds if they were also in a position to challenge them as regards the main order for a stay, and on that ground the appeal against the order for costs was dismissed. Reliance was placed on a statement of the law to be found in Sir Dinshah Mulla's Commentary on the Civil Procedure Code. In the 11th edition at page 154 the learned commentator under section S5 under the heading "Letters Patent Appeal" says this: "An order as to costs is not a 'judgment' within the meaning of clause 15 of the Letters Patent and is not appealable as such." And for this statement of the law reliance is placed on a Madras decision in Saravana Mudaliar v. Rajagopala Chetty. Now, usually we always find that the commentary of Sir Dinshah Mulla is remarkably accurate as to the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end. It cannot be disputed that It was open to the liquidators not to continue the retainer given to the solicitors. It was open to them to withdraw the retainer. It is not suggested in this case that the liquidator withdraw the retainer of the solicitors, and we do not understand on what principle of law it could be suggested that without the liquidator withdrawing the retainer given to the solicitors the retainer automatically came to an end because the company went into liquidation. Whatever authority there is, is contrary to the view taken by the learned Judge. In the well known text on the Law relating to Solicitors by Cordery it is stated at page 78 that a retainer by a company ceases on its dissolution. Therefore, by inference it does not cease merely on the company going into liquidation because the company as an entity is not dead, nor is it dissolved by reason of the fact that it goes into liquidation or a winding up order is made against it. Its legal death only comes about when it is formally dissolved. The same view of the law seems to have been taken by the Privy Council in Dawsons Bank Ltd. v. Nippon Menkwa Kabushaki Kaisha. There the Privy Council was consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
