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TMI Blog1927 (3) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of what is generally described as a particular lien on funds recovered in a suit by their exertions. I will call Suit No. 1405 of 1922 the first suit, No. 3104 of 1925 the second suit. The applicants were attorneys for the plaintiffs in the first suit, and on September 3, 1925, there was a preliminary judgment in their clients' favour by which the defendants were ordered to pay the plaintiffs' costs of suit to date ; and the defendants' counter-claim was dismissed with costs. The plaintiffs' bill of the costs in the first suit was not taxed till September 13, 1926, on which date the taxing master made his allocatur awarding Rs. 3,572-9-8 to the plaintiff as party and party costs. On September 15, 1926, the plaintiffs' attorneys served that allocatur of the defendants. 3. I will now turn to the second suit, viz., No. 3104 of 1925. In that suit Jetha Davji Co., whom I will call the attaching creditors, had obtained a decree on March 1, 1926, against Hansraj Tejmal, the plaintiffs in the first suit. Stopping there, it will be noticed that this decree was after the date of the preliminary decree in the first suit which presumably had been obtained partly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licitors have not got a lien such as existed in England at common law before the Solicitors Act 1860, was never even argued, and that the case was argued on the assumption that that lien, as it is called, existed. But the learned Judge in considering his judgment appears to have thought that that point was not settled law, and accordingly he proceeded to deal to some degree with the law on the point, and in particular with the judgment of Mr. Justice Taraporewala in Ved and Sopher v. Wagle and Co. A.I.R. 1925 Bom. 351. 7. Now that particular judgment was a reserved judgment of Mr. Justice Taraporewala reported in the authorized law reports. It was a case exactly in point, and it was a case which really followed the practice of this Court which had existed for a great number of years. I think, therefore, that Mr. Justice Mirza took an incorrect course in treating the matter as if it was still at large, and as if it was open to him to dissent from the judgment of Mr. Justice Taraporewala. The proper course, I think, for the learned Chamber Judge would have been to have followed that decision without expressing, if he liked any opinion of his own, and leaving it to the parties to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depend on actual possession of the property, but which depends on entirely different principles. Those principles I will now proceed to state as briefly as I can. 10. In the first place it must be clearly understood that the rights and duties of attorney are in no way part of the indigenous law or practice in India. Their profession originates from England ; it grew up under the English common law and it is clear that it was the common law which governed their rights and duties in the King's Courts established by the Supreme Court Charter of 1823 to which Courts our present High Court is the successor. 11. We have recently in two important cases bad to consider in this Court the jurisdiction which we inherit from the Supreme Court. It is clear, as has already-been pointed out in Hirabai v. Dinshaw AIR 1927 Bom 22 and in the recent Special Bench case of Hatimbhai v. Framroz Dinskow A.I.R. 1927 Bom. 278 that the jurisdiction of the Court of King's Bench in England and that of the Courts of equity in England were conferred upon the Supreme Court by inter alia, Clauses 5 and 36 of the Supreme Court Charter of 1823, counting those clauses from the operative part and negle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. St. Quintin [1844] 12 M.W. 441; Sympson v. Prothero [1857] 26 L.J. 671 Ch ; and Eisdell v. Coingham [1859] 28 L.J. 213. 17. In 1860 the Solicitors Act came into force, and by Section 28 of that Act an attorney was given, inter alia, a lien upon real estate. As I have already pointed out, he did not possess a common law lien on real estate before, But not with standing that Act it became important in many cases to appreciate we ether the attorneys still had their common law lien irrespective of the rights conferred by the Solicitors Act. The learned Judge, as I read his judgment at page. 30, line 30, seems to have thought that this Act took away the pre-existing rights of the attorneys. This was not so. 18. And this brings me to consider certain cases which arose on the point as to what notice was sufficient to affect a third party with the equitable claim or lien of the solicitor. In Faithfull v. Ewen [1878] 7 Ch. 495, a decision of the Court of appeal, an attorney who claimed a lien had actually approved a mortgage in favour of other parties on the funds in question without specifically claiming that he was entitled to a lien in priority to that mortgage in respect of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is it conferred for the first time by the Solicitors Act, 1860. It was held in In re Born that, as the charging order applied for in that case conferred no new right, but was only a cheap and speedy mode of enforcing the common law lien on the company's share of the fund in Court, which lien existed prior to the winding-up, the Court, in the exercise of its 'discretion under the statute, would make the order. There Mr. Justice Farwell says (p. 435): It is also contended that, having regard to the winding-up, ought not now to give the applicants a charge under the statute. But though this application is under the statute, it is very material to consider whether, if I make a charging order, I am thereby giving the applicants a new right, or merely enabling them more cheaply and speedily to enforce, a right they already possess. Now, it is plain that they have a common law lien on the company's share of the fund in Court for the amount of their costs, It would be monstrous if this were not so, as the company would never have recovered the money without their exertions. It resembles the case of debenture-holders who have to allow a liquidator's costs when they take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evkabai v. Jefferson, Bhaishankar and Dinsha [1886] 10 Bom. 248, this is clearly laid down by Sir Charles Sargent, He says (p. 253): It is to be borne in mind that the solicitor's lien in the High Courts of India is governed exclusively by the law as it existed in English Courts before the pissing of 23 and 24 Vic., cap. 127 (the Solicitors Act 1860), by which that lien was very much extended, By that law the solicitor had a lien for his costs of any funds or sum of money recovered for, or which became payable Jo, his client in the suit. 25. It is true that in that particular case the alleged lien failed. But that was because it was held that the particular fund in question had not been recovered by the aid of the solicitors. Then, in In re Tyabji Co. [1905] 7 Bom. L.R. 547, Mr. Justice Tyabji said (pp. 553-51): As to the general jurisdiction of the Court, it does not seem to me that there can really be any doubt that the High Court now possesses the summary jurisdiction which is sought to be invoked. The solicitors and attorneys of this Court have always been regarded by the High Court as, in soma sense, officers of the Court, and, therefore, entitled to special pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular action ; and, secondly for business done in other matters. As regards the first claim, that was referred to the taxing mister, and it was disallowed. So that claim failed on the facts, for the solicitor had not incurred these costs. As regards the second claim that was for business not done in the suit. It was, therefore, for a general lien, and, as I have already stated, the solicitors' lien, which we are now dealing with, viz., their common law lien, does not extend to their general costs for all business done for their client, but only to co3ts in connexion with a particular suit in which the money has been recovered. Naturally, therefore, the Court in that case rejected the claim of the solicitors. 33. Then, in Shaw v. Neale [1858] 6 H.L.C. 581, it was held that a solicitor's lien did not extend over real estate. That is the only significance of that case. The mere use of the word estate in the head-note and judgment may at first sight be ambiguous. But it is clear on looking at the facts that the estate there referred to was real estate and not personal estate. 34. Then, much reliance was placed on North v. Stewart [1890] 15 A.C. 452. Now, it must be bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realized, it was held that the solicitors could not claim any lien upon that fund in spite of any exertions of theirs in recovering it. I take it in effect that having notice of this breach of trust they were in no better position than their client who committed the breach of trust. Consequently, their rights would be postponed to those of the cestuique trust in the suit. 37. In Turner v. Letts [1855] 20 Beav. 185 the person who had employed the solicitor was a tenant for life, and had afterwards died It was held on the facts of that particular case that this tenant for life could not give as against the remainderman a valid lien in favour of her solicitor as regards-certain specific chattels, to wit, title deeds. Both these depend on their particular facts, and do in no way militate against the general principles of law. 38. Confronted, then, with this formidable line of authorities in England and India. it is not surprising that eventually the defendants' counsel was forced to concede the existence of the general propositions which are enunciated in those cases. But conceding that he contended first that it was not competent for the Court to make a charging order here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge on the sum in question, and it was further ordered that that sum should not be paid to the plaintiffs in the second suit without notice to the appellants. The second part, therefore, of that order is precisely what is stated in the above passage from Halsbury, viz., that the money is not to be paid without notice to the client. But there is this exception in the present case that the form has been varied because the moneys had already been paid to the Sheriff of Bombay in the other suit, and therefore the order purported to direct that the money should not be paid to the plaintiffs in the other suit without notice to the solicitors. 41. This particular complication I would prefer to put on one side for a moment land to consider the matter from the point of view supposing the money had not been paid by the defendants in the first suit to the Sheriff of Bombay. That being so, I think there would clearly have been power in the Court to make an order restraining the plaintiffs from receiving payment without notice to the solicitors. Whether the particular form of order in use, which is taken from Seton, 7th Edn.; Vol. II, p. 1042, should? not be modified is a matter which had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that I have already cited establish a similar proposition, to my mind, beyond question. I, therefore, need not deal with the cases which decide that the mere fact of there being a fund in Court is sufficient to give notice to the third party of the possibility of a solicitor being entitled to a lien for his costs. Really the respondents in the present case are very much like the Official Receiver in the case referred to by Lord Justice Cotton and Lord Justice Lindley in Guy v. Churchill [1779] 1 Dong. 237. They want to obtain this fund without paying, the person by whose exertion the fund was recovered. 44. I would, accordingly, hold that the respondents here had notice of the attorneys' common law lien when they attached the decree in question, and that accordingly their contention that they were bona fide holders without notice cannot prevail. 45. Further, as the fund is still under the control of the Court, viz., in the hands of the Sheriff, there is no difficulty in doing justice and equity in this case. If once the fund had left the control of the Court, different considerations might arise, as to which I say nothing. But the circumstance whether the fund is in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It would be no use bringing a suit merely on charges of collusion and fraud unless, some relief was to be obtained as a result of it. If it was a common law action1 for fraud claiming damages, I could follow it. But if the action was also to establish their common law lien, then surely they would have been met at once by the judgment on the present summons, and it would have been said that the matter was res judicata. But I need not go further into that. 48. It follows, from what I have already stated, that in my judgment the learned Judge's order was erroneous and cannot be supported. In saying this, I have not the smallest doubt that if instead hearing this case in chambers, and then giving judgment on a point, which we are told was never contested by the respondents, viz., as to the existence in Bombay of a solicitor's common law lien, the learned Judge had adjourned the case into Court and had had the benefit of the arguments that have been addressed to us, he would have arrived at identically the same conclusion that we have arrived at because the law on the point is to my mind overwhelmingly clear and leaves no room for doubt. Our judgment merely establishes wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as long ago as 1886 in Devkabaiy. Jefferson, Bhaishankar and Dinsha [1821] 5 Mad 462, laid down the law as regards the solicitor's lien in a case of this kind. At page 253 Sir Charles Sargent pointed out in a passage, to which the learned Chief Justice has referred, that the solicitor's lien in the High Courts of India is governed exclusively by the law as it existed in England before the passing of the Solicitors Act, I860, and that the solicitor had a lien for his cost on any funds or sum of money recovered for, or which became payable to, hi3 client in the suit. 53. A solicitor's common law lien must not be confused with a solicitor's possessory lien, The common law lien is, in my opinion, accurately defined in Halsbury's Laws of England, Vol. 26. Sections 1342 and 1343, pp. 820-1, to which the learned Chief Justice has referred. Authorities for the proposition that it includes costs ordered to be paid to the plaintiff are, among others, Ex-parte Bryant [1815] 1 Mad. 49 and O'Brien v. Lewis [1863] 3 J. 606. The mode of enforcing a lien is also dealt with, I think, accurately, in Section 1344 of the same volume of Halsbury, to which the learned Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wart [1890] 15 A.C. 452, which was strongly relied upon by Mr. Maneksha, that case, when examined, merely laid down this, that a solicitor's lien upon costs decreed does not prevent an attachment by other persons having claims. That principle was not disputed by the Advocate-General in this case. But North v. Stewart [1890] 15 A.C. 452 did not decide any question, of priority, or deal with what the position would be if a solicitor having a lien ought to enforce by the assistance of the Court his lien in priority to an attaching creditor. 59. In this Court a question similar to the one now before us was decided by Mr. Justice Taraporewala in Ved Sopher v. Wagle Co. A.I.R. 1925 Bom. 351. The head-note of that case is as follows: W Co. having obtained a decree in. a suit filed against NH, the decree was attached by their own judgment creditors V and S.A W Co. in that solicitors who had acted for W Co. in that suit and in certain partnership litigation obtained charging orders for their costs against the same decree. On a question arising as to the rights of the parties claiming to be entitled to the sums paid to the Sheriff in execution. Held : that the solici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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