Ghulam Moideen Sahib vs Mohammad Oomersahib and Another

Venkatasubba Rao, J.—This summons raises a question relating to a Solicitor''s lien. In O.P. No. 44 of 1923 costs were awarded to

Ghulam Mohideen against Govindarajulu by an order dated 17th December, 1924. Mr. Sudarsana Raju, as Attorney, appeared then for Ghulam

Mohideen. Nothing seems to have been done for about six years. Then in April, 1930, at his client''s request, the Attorney tiled his bill of costs

which was taxed by the Registrar on 28th April, 1930. In doing so, the Registrar overruled the objection of Rajabahadur, the legal representative

of Govindarsju who in the meantime had died. In execution of the order for costs against Rajabahadur certain jewels were seized and brought into

Court. This happened on 7th August, 1930.

I must now turn to a suit field by Dawood Saheb against Ghulam Mohideen, C.S. No. 76 of 1925, In that suit, on 26th July, 1925, Dawood

obtained a decree against Ghuiam Mohideen. In execution of that decree he applied, on 2nd August, 1930 for attachment of the order for costs in

O.P. No. 44 of 1923, which had been obtained by his judgment debtor, namely, Ghulam Mohideen. I am satisfied that it was with the active help

of Rajabahadur that Dawood Saheb took this step. But this is really immaterial, for in my judgment nothing turns upon it. Mr. Sudarsana Raju

intervened and objected that costs were due to himself from his client and that the attachment asked for by Dawood Saheb should not be made as

it would defeat his own right. The Master must be taken to have overruled the objection of the Attorney, for on 15th August, 1930, he made an

order for attachment in favour of Dawood Saheb. Mr. Sudarsana Raju urges that he has a Solicitor''s lien for his costs and on that ground attacks

the master''s order.

The first ground taken by the Counsel for Dawood Saheb is that the Attorney has no subsisting claim for costs against his own client. The facts

bearing on this point are these: The Attorney''s account books show that in 1924 he received from his client Rs. 10 and spent on his behalf Rs. 6.

From 1924 to 1930 as I have said, nothing seems to have been done, but, in April, 1930, Ghulam Mohideen requested Mr. Sudarsana Raju to tax

his bill of costs. The latter seems to have incurred expenses by way of out fees amounting to Rs. 40. The total amount thus spent by him comes to

Rs. 46; and deducting from it Rs. 10 to which I have already referred, he was out of pocket by Rs. 36. The costs allowed to him on taxation

amounted to Rs. 500 odd. What is urged by Dawood''s Counsel is that the business for which the Attorney was employed terminated on 17th

December, 1924, and that the Attorney''s claim for costs against his client was, therefore, barred under Article 84, Limitation Act. Article 84 is

restricted to suits, but I shall assume that even applications are governed by it by way of analogy. That Article provides a period of three years for

a suit by an attorney ""for his costs of a suit or a particular business,"" the time running from ""the termination of the suit or business,"" It cannot be said

that the business terminated in 1924. There is no question in this case between the Attorney and his client. When his own client treats the

engagement as subsisting and instructs him to tax his bill of costs, how can it be said that the business has terminated? Would it be open, for

instance, to Ghulam Mohideen, if a suit had been brought against him by Sudarsana Raju, to plead that the latter''s claim for costs was barred,

notwithstanding what had happened between him and his attorney in April, 1930? The answer must plainly be in the negative. I, therefore, hold that

on the date when Sudarsana Raju intervened and objected, he had a subsisting claim for costs which he could have enforced against his client in a

regular suit. This brings me to the second point raised, namely, has the attorney a lien for his costs which cannot be defeated by a third party''s

attachment? This point is fully considered by Sir Amberaon Marten, C.J., and Blackwell, J., in Tyabji, Dayabhai and Co. Vs. Jetha Devji and Co.,

. The learned Chief Justice reviews the English cases at length and points out that a Solicitor has under the common law what is known as

particular lien which does not depend on actual possession of the property as distinguished from possesory lien by reason of certain property like

title-deeds being in his hands. The English cases also show very clearly that this common law lien has not been abrogated by Statute. This is

pointed out by Farwell, J., in In re Born (1900) 2 Ch. 433 : 69 L.J. Ch. 669 : 49 W.R. 23 : 83 L.T. 51, where he observes that a Solicitor has a

common law lien on the fruits of a judgment recovered by his exertions, for it would be inequitable to give the client the benefit of the Solicitor''s

labour without paying for it. To the same effect are the observations of Swinfen Eddy, J., in In re Metre Cabs Ltd. (1911) 2 Ch. 557 : 105 L.T.

572 : 56 S.J. 36 and of Cotton, L.J., and Lindley, L.J., in Guy v. Churchill (1887) 35 Ch. D. 489 : 56 L.J. Ch. 670 : 35 W.R. 706 : 57 L.T. 510.

In the judgment of the Bombay High Court, these and several other cases have been fully referred to and I shall not, therefore, discuss the point at

any further length. That the law in India on this point is in conformity with the common law of England is also established by the same decision. In a

case quoted by the learned Sir Charles Sargent, C.J., says:

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 passing of 23 and 24 Vic., Ch. 127 (the Solicitors Act, 1860) by which that line 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 to his client in the suit; Devakibai v. Jefferson (5).

It is also clear from the decided cases, that the Attorney''s lien is not liable to be defeated on the ground that the assignee of a decree or the

attaching creditor of the Solicitor''s client had no express notice of the lien. The fact of there being a fund in Court amounts to notice of the

existence of a Solicitor''s lien. The same rule is stated differently thus. If the assingnee has notice that what is assigned is the subject-matter of a suit,

he must be deemed to have notice of the existence of the Solicitor''s lien: see the cases cited in the Bombay High Court judgment. In the present

case the Attorney pointed out that he had a lien before the attachment was made. But, as I have said the question whether the attaching creditor

has express notice is immaterial.

Then remains the question, what is the order I am to make? Dawood Saheb after obtaining the attachment, has realized the sum from

Rajabahdur; at any rate he says so, and what is material is that on 22nd August, 1930, he entered up satisfaction of the order for costs. I must,

therefore, direct Dawood Saheb to bring back by way of restitution Rs. 464-8.0 to be paid over to Mr. Sudarsana Raju. When the amount is

brought back the part satisfaction which Dawood entered of his own decree in C.S. No. 76 of 1925 will stand revoked. It follows from this that

the jewels in Court must be returned to Rajabahadur and I make an order accordingly. In view of the fact that Mr. Sudarsana Raju slept over his

rights for about six years, I make no order as to costs.