Desai, C.J. - (1.) THIS is an application by the Appellants in F.A. No. 382 of 1946 disposed of by this Court on 2 -12 -1959. Sri B.R. Avasthi was the Advocate for the Appellants and he filed his Vakalatnama in the appeal and a certificate of having received Rs. 105 as his fee in the appeal. The Respondents filed a cross -objection and Sri B.R. Avasthi, without filing another Vakalatnama in the cross -objection, filed another certificate of having received Rs. 105 more for opposing the cross -objection. The appeal and the cross -objection both were dismissed with costs. Separate memoranda of costs were prepared for the appeal and the cross -objection. There is no controversy about the memorandum of costs prepared for the appeal, but in the memorandum of costs prepared for the cross -objection the amount of Rs. 105 paid to Sri B.K. Avasthi was not shown on the ground that Sri B.R. Avasthi had not filed a separate Vakalatnama or retainer slip in the cross -objection. So this application has been made by the Appellants for correction of the memorandum of costs in the cross -objection.
(2.) WE have heard Sri B.R. Avasthi and Sri N.A. Kazmi and are satisfied that the memorandum of costs of the cross -objection was wrongly prepared. It should have shown the amount of the legally taxable fee certified to have been received by Sri Avasthi for opposing the cross -objection. The Vakalatnama filed by Sri B.R. Avasthi in the appeal enured for the whole of the appeal including the cross -objection. A cross -objection filed under Or. XLI, R. 22 Code of Civil Procedure is nothing but a part of the appeal, even though it must be in the form of a memorandum of appeal and comply with the provisions of R. 1 of Or. XLI, and has to be heard and determined on merits in spite of the dismissal for default, or withdrawal, of the original appeal. It is laid down in Or. III, R. 4 Code of Civil Procedure that a Vakalatnama filed in a suit is to remain in force until all proceedings in the suit are ended so far as regards the client and that an application for review of judgment, or under Section 144 or Section 152, or any appeal from any decree or order in the suit or any application for the purpose of obtaining copies of documents or return of documents is to beamed to be a proceeding in the suit. This means that if a Vakalatnama is filed in a suit it remains in force for the appeal arising out of the suit also. Even though a cross -objection may for certain purposes be treated as another appeal, it would still be an appeal arising out of the suit and if a Vakalatnama filed in the suit would hold good not only for the appeal arising out of the suit but also for the cross -objection filed in that appeal, there is no reason why a Vakalatnama filed in the appeal should not hold good for the cross -objection. We hold that no separate Vakalatnama is required for the cross -objection at all; the Vakalatnama filed in the suit or in the appeal will hold good for the cross -objection also. No specific rule requiring a separate Vakalatnama to be filed in the cross -objection was brought to our notice.
(3.) THE rules about taxation of costs are contained in Ch. XVI of the Rules of Court. R. 12 lays down that a cross -objection filed under Or. XLI, R. 22 Code of Civil Procedure shall for the purposes of taxation of costs be treated as a separate appeal; this means that a separate memorandum of costs for the cross -objection is to be prepared and the legally taxable fees, if paid, separately for the cross -objection to the counsel and certified by them, are to be shown in it in every case, and not only if the counsel file fresh Vakalatnama for the cross -objection. It is on account of R. 12 that a separate memorandum of costs for the cross -objection is prepared. We should not read in it anything more and it would be wrong to say that partly would be allowed a fee through the memorandum of costs of the cross -objection only if his advocate has filed a separate Vakalatnama for the cross -objection; this does not follow from R. 12 at all. We may refer to R. 11, which allows separate costs to Advocates of the parties when an application made in an appeal is allowed or dismissed with costs. No separate Vakalatnama is filed by an Advocate in the application, and if, without his filing a separate Vakalatnama in the application, his client can recover the fee paid to him for moving or opposing the application through the memorandum of costs, there is no justification for saying that he cannot recover the fee paid to him for opposing a cross -objection unless he files a separate Vakalatnama in the cross -objection. If the cross -objection is dismissed with costs, and if the Advocate of the Appellants has furnished a certificate of fee received for the cross -objection, the amount of the fee if not exceeding the maximum amount permitted under the rules, must be shown in the memorandum of costs of the cross -objection and the Appellants are entitled to recover it. We respectfully disagree from the contrary view taken by our brother Srivastava in Gopinath v. Brijmohan Das Misc. case No. 419 of 1959 (decided on 10 -2 -1960). The attention of our learned brother does not seem to have been drawn to the provisions of Or. III. He has also not given any reason for the view that unless a Vakalatnama or retainer is filed by the Appellant's Advocate in the cross -objection the Appellant cannot recover the fee paid by him to his Advocate specially for opposing the cross -objection, even though the payment is certified by the Advocate and does not exceed the prescribed maximum.;