JUDGMENT

Penckridge, J. - This is an application on behalf of Ramesh Chunder Bose, an attorney of the Court, for an order under Chap. 38, Rule 59 of the Rules of Court, that the plaintiffs, Mt. Attormoni Dasi and Ashutosh Dhur, do pay him a sum of Rs. 23,755-3-0 being the balance of his taxed costs in this suit. The history of the suit, which is one for the administration of the estate of Pitambar Dhur, deceased, is as follows:

Pitambar Dhur, the testator, died on 21st October 1897, leaving him surviving his two sons, the defendants Bepin Behary Dhur and Kali Charan Dhur, and four grandsons, the sons of his predeceased eldest son Narayan Chandra Dhur, the husband of the plaintiff Mt. Attormani Dasi, viz. Nabin Chandra, Ashutosh, Purna and Shibnatb. Ashutosh is one of the plaintiffs, Nabin Chandra, a defendant. Purna Chandra and Shibnath are dead. The former is represented by the defendant Mt. Sushila Sundari Dassi, his wiclow, and the latter by the female plaintiff, his mother. Pitambar's widow, Mt Sarat Coomari Dassi, is also a defendant.

2. On 3rd December 1897 application was made for the probate of the testator's will. A caveat was entered and the matter set down as a contentious cause, being numbered 3 of 1898. In the initial stages of the testamentary suit the attorney for the plaintiff in this suit were the firm of Kally Nath Mitter and Sarvadbicary, but some time in 1901 there was a change from that firm to Romesh Chunder Basu, the applicant in this case. The testamentary suit was settled and a consent decree made therein on 30th May 1904, probate of the will being granted and an order made that costs of all parties do come out of the estate.

3. On 2nd December of the same year this suit for administration was instituted, the applicant again acting as attorney for the plaintiffs Ashutosh and Mt. Attormani.

4. It is unnecessary to set out in detail all the steps of this intricate litigation.

5. The preliminary decree was made on 23rd January 1906, and the final decree was made on 17th December 1912. Appeals were filed and further enquiries directed, and the final decree, as it now stands, was made on 8th May 1916. On 17th September 1921 the applicant's bill of costs was lodged in the Taxing Office, and on 26th June 1923 the bill was finally vouched, taxed and passed and an allocatur issued allowing Rupees 12,295-8-0 as between party and party, and Rs. 13,949-1-5-0 as between attorney and client. Both the plaintiffs oppose the present application, and maintain that the circumstances of the case are such that in the exercise of my discretion I should refuse to make the order asked for and refer the parties to a suit.

6. Now it is conceded that, with the exception of certain costs which the applicant has expressed his willingness to give up, I must either make the order for the payment of the sum mentioned or dismiss the application. It is not open to me, on this application, to entertain, far less to decide, questions such as set-off and damages. If these are to be agitated at all it must be in any ordinary suit.

7. With regard to limitation the position is this. Applications under Rule 59 are not subject to either to Article 84 or Article 181, Lim. Act : see Narhndrala Lal Khan Vs. Tarubala Dasi, AIR 1921 Cal 67 but the judgments both of Rankin, J., in that ease, and of Chaudhuri, J. in Lakhimani Dassi v. Diuijendra Nath Mukerjee [1918] 46 Cal. 249 indicate that in certain circumstances the Court, in the exercise of its discretion, should take into account the fact that if the attorney be referred to the remedy of a regular suit that suit must be dismissed as being time barred.

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

9. By Article 84 of that Act the date from which the three years' period