1. This is a Chamber Summons taken out by the Applicants who are a firm of Solicitors against their own clients for certain reliefs by way of a declaration of a lien for payment of their costs and for an order for payment of their cost. It will, however, be necessary for me later to set out and discuss the exact reliefs prayed for by this summons as the same are in dispute.
2. This suit was originally filed on 27-11-1948 by one Adam Haji Pirmahomed Essak as the sole Plaintiff claiming damages for breach of a contract. The applicants were the Solicitors of the Plaintiff. During the pendency of this suit in July 1952 the applicants came to know that the Plaintiff had been declared an evacuee. The applicants therefore wrote a letter dated 18-7-1952 to the Assistant Custodian of Evacuee Property, Bombay setting out shortly the facts relating to this suit. The applicants further wrote:
'We understand that the above mentioned plaintiffs are adjudged evacuees. We suggest that the Custodian may be brought on record of the suit as plaintiff No. 1(a) and the suit may be proceeded with. We are conversant with all the facts of the case as we have attended to the matter right from the beginning. We shall therefore be glad to know from you if you desire to be added as Co-plaintiff to the suit and whether you will appoint us as your Solicitors and agree to pay our bill of costs of the suit.'
3. It would appear that thereafter there was a telephone conversation between the Assistant Custodian and one Parpia a partner of the applicants which the applicants by their letter dated 31-7-1952 addressed to the Custodian recorded as follows:
'With reference to the telephone conversation you had with our Mr. Parpia the other day, we beg to place on record that you would be liable to pay our further costs herein as your Attorneys and as regards costs prior to our appointment as Solicitors, we have to put in a claim in the ordinary way before you.'
4. By their letter dated 9-8-1952, the applicants in continuation of the said letter dated 31-7-1952 further wrote tot he Custodian that the costs which the applicants would be entitled to recover from him would be costs taxed according to the Rules of the High Court, Bombay. By his letter in reply dated 16-8-1952 the Assistant Custodian wrote as follows:
'With reference to the correspondence resting with your letter No. H/7440/52 dated 9-8-1952, I am to state that you may please move the Court for bringing the Custodian on record as party Plaintiff and party Defendant respectively in the above mentioned two suits, and that you are appointed Solicitors for the Custodian in these two matters.
As regards your costs as Attorneys of the Custodian, I am to confirm that you will be entitled to recover the same as taxed under the Rules of the High Court, Bombay. With regard to cost prior to this, you may put in a claim in the manner provided in Rule 22 of the Rules framed under the Administration of Evacuee Property Act, 1950.'
5. There is no dispute that from 16th August, 1952 the Applicant started acting as the Attorneys of the Custodian of Evacuee Property, Bombay, in respect of this suit. On the application of the Custodian, he was, on 7th October, 1952, joined as Plaintiff. No. 1A in this suit. For convenience I will continue to call the original Plaintiff as the Plaintiff and the Custodian, being Plaintiff No. 1A, as the Custodian. on 25th January, 1955 a decree was passed in this suit for Rs. 6,559-11-0 for claim and for the taxed costs of the suit. That decree is in favour of both the Plaintiffs herein, i.e., the original Plaintiff and the Custodian. After the decree the Custodian, without the knowledge or intervention of the Applicants, entered into an agreement with the Defendants, the judgment-debtors herein, to accept the entire decretal amount of claim and costs in instalments of Rs. 300/- per month. The Applicants got their bill of costs of this whole suit taxed and on 19th March, 1957 served the allocatur which is dated the 12th February 1957 on the Custodian. According to the allocatur the amount of the party and party costs is Rs. 4,998-11-7 and the attorney and client costs up to January 1956 is Rs. 3,355-15-10.
6. It will be noticed that the said taxed costs recoverable by the Applicants divide themselves into two parts, the first being the costs relating to the period prior to 16th August, 1952 when the Applicants were acting as the Solicitors of the Plaintiff alone, which I will refer to as 'the earlier costs' and the second being the costs relating to the period subsequent to 16th August, 1952 when the Applicants were acting as the Solicitors of the Custodian also, which I will refer to as 'the subsequent costs'. The amount of costs as taxed are a composite figure. The Applicants have estimated that the earlier costs amount to about Rs. 4,938/- and the subsequent costs to about Rs. 3,416/-. Such estimates of the Applicants however is of no consequence in view of the fact that both the parties agreed before me specifically at the hearing of this summons that if the nature of the relief which I may grant herein necessitates the earlier costs and the subsequent costs to be separately ascertained, the Taxing Master may be directed to allocate the costs as taxed by him as aforesaid to the said earlier and subsequent periods.
7. On an inquiry from me Mr. Thakore informed me that the Custodian had already recovered Rs. 6000/- under the decree, although he did state that he was not sure about the correctness of the said amount as, if a further instalment had already been paid, the said amount would be Rs. 6,300/-. The exact amount is of no consequence to the decision of this case, it being material only for an appreciation of practical aspect of the dispute herein.
8. Prayer (a) of the summons is for a declaration of lien and prayer (c) is for a charging order and they read as follows:
'(a) that it may be declared that the Applicants as the solicitors employed by the Plaintiffs are entitled to an Attorney's lien on the proceeds of the Judgment and decree dated 25th January, 1955 passed in favour of the Plaintiffs herein for the party and party and attorney and client costs certified to the Applicants under the Taxing Master's Allocatur herein dated 12th February, 1957 and for their costs charges and expenses for further work done by them on behalf of the Plaintiffs since 3rd January, 1956 and for costs of this Application and the order to be made thereon.'
'(c) The balance still remaining due and payable by the Defendants to the Plaintiffs under the Decree herein dated 25th January, 1955 be charged with payment of the costs due to the Applicants herein as set out in prayer (a) above.'
It is clear that the charging order prayed for is commensurate with the lien mentioned in prayer (a). On an analysis of prayer (a), it is clear that the Applicants claim a lien (1) in respect of both the earlier costs and the subsequent costs, and (2) on both the recovered and unrecovered portions of the decretal amount. Mr. Thakore specifically stated that he did not dispute the applicants' claim for a lien and a charging order in respect of the subsequent costs as confined to the unrecovered portion of the decretal amount. Therefore so far as prayers (a) and (c) are concerned, Mr. Thakore's contentions are that there should be no declaration of lien or charging order (1) in respect of the earlier costs, and (2) against that portion of the decretal amount which has already been recovered by the Custodian.
9. Prayer (b) of the summons reads as follows:
'The Plaintiff No. 1A be ordered to pay to the Applicants out of the amount he may have recovered or may hereafter recover from the Defendants under the Decree dated 25th January, 1955 the costs mentioned in prayer (a) above or such of them as may have remained unpaid.'
Here again Mr. Thakore specifically stated that he did not object to an order for payment being made in respect of the subsequent costs. So far as prayer (b) is concerned, Mr. Thakore's objections were that (1) there cannot be an order for payment of the earlier costs, and (2) there cannot be an order for payment whether for earlier costs or even for subsequent costs out of the amount mentioned in prayer (b) or out of any particular amount or fund.
10. It is necessary first to ascertain what the rights of a Solicitor are in respect of the recovery of his costs. The principle with regard to the rights of a Solicitor in Bombay as regards recovery of his costs are by now fairly well settled. So far as I am concerned in this case there exist the three rights mentioned hereinafter.
(1) The first is his right to recover from his client. In the words of Chagla C.J., as mentioned in his judgment in Basudeo v. Vachha and Co., : AIR1955Bom126 .
'A solicitor is undoubtedly entitled to proceed against his own client for the costs to which the Solicitor is entitled in respect of the work done by the Solicitor of this client. The Court gives many facilities to the Solicitor to recover his costs from his client. He can get his costs taxed and on the issue of an allocatur he can get a pay-order from the Chamber Judge which he can execute as a decreed. Therefore, the important facility that the Court affords him is that he need not file a suit against his client to recover his costs.'
I may observe that the facility of obtaining a pay-order is provided for under Rule 1079 of our High Court Rules on the Original Side.
(2) The second right is the Solicitor's right to what is known as the common law lien. As stated in Halsbury 1st edition, Vol XXVI page 820 paras 1342 and 1343, and cited with approval by Martin C.J. in Tyabji Dayabhai and Co. v. Jetha Devji and Co. : AIR1927Bom542 ,
'A solicitor has at common law, and apart from any order of the Court or statute a lien over property recovered or preserved or the proceeds of any judgments obtained of the client, by his exertions. This lien is a particular lien; it is not therefore available for the general balance of account between the solicitor and the client, but extends only to costs of recovering or preserving the property in question, including the costs of protecting the solicitor's right to such costs and of establishing the lien.'
'It is merely a claim to the equitable interference of the Court to have the judgment held as a security for costs', as mentioned in order's Law relating to Solicitors, 4th edition, page 476. That particular lien of the solicitor as existing at common law prior to 1860 is also available to the solicitors in India as held in numerous cases. For example see the following proposition laid down by Sir Charles Sergeant C.J. in Devkabai v. Jefferson, ILR Bom 248 :
'It is to be borne in mind that the Solicitor's lien in the High Court of India is governed exclusively by the law as it existed in English Courts before the passing 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 on any funds or sum of money recovered for, or which became payable to, his claim in the suit.'
(3) The third is the right to obtain what is in short called a charging order. That the Courts in India can pass such a charging order was held by Martin C.J. in the said case of : AIR1927Bom542 when the learned C.J. said, at page 1212 (of Bom 542) when the learned C.J. said, at page 1212 (of Bom LR) : (at pp. 548-549 of AIR) of the said report as follows:
'Now, as regards the first point as to the jurisdiction to make what is called for short a charging order, I think Mr. Maneksha is correct in thinking that the exact expression 'charge' is obtained from the actual wording of Section 28 of the Solicitors Act, 1860, and that particular word is not an apt one to describe a solicitor's common law lien. But having regard to the lapse of time, one can well understand how our Court has come to adopt the form of summons in use nowadays in England to enforce that right. And when one comes to consider what right a Solicitor has, quite apart from the Act of 1860, to enforce his lien, it will be found that the matter becomes one of mere wording. Thus, in Halsbury, Vol. XXVI, p. 822, para 1344, the law is, I think, accurately stated in dealing with the enforcement of a common law lien. It is stated:--
'By virtue of his lien the solicitor has a right to ask for the intervention of the Court for its protection whenever he finds, after recovering or preserving the property for the client, that there is a probability of the client depriving him of his costs. He is, therefore, entitled to apply to the Court for an injunction against his client, restraining the client from receiving payment without notice to himself, or, if the fund is in Court, for an order for payment thereout of his costs. He may also give notice of his lien to the party liable to his client who thereupon becomes liable to the solicitor if he subsequently pays the client without regard to the solicitor's lien. if the money in respect of which the lien is claimed is already in the solicitor's hands, he may retain thereout the amount of his costs, and pay over the balance to the client.'
From the various cases of our High Court cited in : AIR1927Bom542 , it is clear that our High Court had in fact been passing charging orders since long prior to the decision in the case of : AIR1927Bom542 .
11. Prayers (a) and (c) of this summons are for a declaration of lien and for a charging order. A charging order follows upon a declaration of lien and both these prayers therefore can be considered together. The consideration of these two prayers raises two points, viz.
(1) whether there can be a declaration of lien or a charging order in respect of the earlier costs, and
(2) whether there can be any declaration of lien or charging order -- whether in respect of earlier costs or even in respect of subsequent costs -- over the amount already recovered by the Custodian or whether it should be confined only to the unrecovered portion of the decree.
12. Coming to the first point, Mr. Thakore does not dispute that declaration of lien and a charging order can and may be made in respect of the subsequent costs. Mr. Thakore however contends that the applicants are not entitled to such a declaration and order in respect of the earlier costs by reason of the agreement between the applicants and the Custodian as recorded int he correspondence referred to by me earlier. He contended that in respect of the earlier costs it was specifically agreed that the applicants had to put in a claim in the ordinary way before the Custodian as recorded in the applicants' said letter dated 31st July 1952, which is the same thing as putting in a claim in the manner provided in Rule 22 of the Rules framed under the Administration of Evacuee Property Act, 1950 as mentioned in the Custodian's said letter dated 16th August 1952. He contended that because of this specific agreement the applicants are not entitled to claim a lien or a charging order or even any other right or remedy in respect of the earlier costs all of which must be deemed to have been waived by the applicants by reason of the said agreement. Now, it should be noted that this is what Mr. Thakore wants me to infer because it is not affirmatively or specifically agreed upon between them that the applicants will not be entitled to the same. I am however unable to draw an inference from what has been agreed upon that the applicants gave up or lost their right to obtain a declaration of lien or a charging order. In the first letter viz., the applicants' said letter dated 18th July 1952, the applicants wanted the Custodian to agree to pay their bill of the suit, which would include both the earlier costs and the subsequent costs which were then not yet incurred but were to be incurred thereafter. There was thereafter the said telephone conversation and as a result thereof it was agreed, as recorded in the applicants' said letter dated 31st July 1952, that the Custodian would be liable to pay the subsequent costs, but as regards the earlier costs, the applicants should put in a claim int he ordinary way before the Custodian as recorded in the applicants' said letter dated 31July 1952 or as provided in Rule 22 as mentioned in the Custodian's said letter dated 16th August 1952. This difference in the phraseology used in these two letters made no practical difference as I will point out later. In my opinion, both these terms, viz., the one relating to the subsequent costs and the other relating to the earlier costs, fell within one class or category, viz., what was to happen when the solicitors demanded payment from the Custodian himself. There is no agreement at all -- either as regards the earlier costs or as regards the subsequent costs -- as to the rights and remedies of the applicants in respect of their costs as against he amount, if any, which may be decreed in the suit. These rights and remedies include a declaration of lien and a charging order which fall in a different class or category, they are against the amount decreed against the other party to the suit and are what the law gives to the solicitors by way of an equitable interference by the Court. At the time of the said agreement, the parties were not thinking in terms of the applicants' rights or remedies against eh amount that may be decreed and by the said agreement the parties have made no stipulation whatever about the same. What the parties stipulated about was as to what should happen when the applicants wanted their costs to be paid by their own client and not what their rights should or should not be as against the amount decreed. I, therefore, hold that there is nothing in the said agreement which deprives the applicants of their normal right to obtain even in respect of the earlier costs a declaration of lien or a charging order against the amount decreed against the Defendants.
13. I will now consider the said second point whether there can be a declaration of lien or a charging order over the amount already paid to the Custodian out of the decretal amount. There are to be found in the Law Reports, both English and Indian, innumerable cases where Courts have made orders declaring the solicitor's lien granting charging orders. There are numerous cases where the effect of the solicitor's lien for granting charging orders. There are numerous cases where the effect of the solicitor's lien of costs has been considered when outsiders levied attachments on the fruits of the solicitor's exertions when judgments were recovered, or on properties preserved through the solicitor's exertions or again when the Solicitor's own client entered into a compromise with the party on the other side with a view to deprive or which had the effect of depriving the solicitor of the benefit of the property recovered or preserved through his exertions. The circumstances are many and varied, but there is not a single case -- at least none has been cited nor could be found out by Mr. Parpia -- where a lien was declared or a charging order made on the amount of the judgment or decree already recovered by the client of the solicitor. And the reason is obvious if one considers the very object of making such orders. Normally it is the client who has to pay the costs of his own solicitor even when a judgment or decree has been in favour of that client for his costs of the litigation which resulted in such judgment or decree. On the one hand such client would pay to his own solicitor all costs which he is liable to pay and on the other recover from the other side such costs as are awarded him by the judgment or decree. But cases would arise where the solicitor may apprehend that he may not succeed in recovering costs from his own client, not only from his client's own funds and properties, if any, but even from the amount awarded to his client under the judgment or decree if once the client recovers the same. It is to meet such an eventuality that the necessity of declaring the solicitor's lien or granting a charging order arises. In Mercer v. Graves, (1872) 7 QB 499, Cockburn C.J., said in connection with the solicitor's lien:
'There is no such thing as lien except upon something of which you have possession..... Although we talk of an attorney having a lien upon judgment, it is in fact only a claim or right to ask for the intervention of the Court for his protection, when, having obtained judgment for his client, he funds 'there is a probability of the client depriving him of his costs'.' (the underlining (here in' ') is mine).
The whole object of the lien is, therefore, to intercept the amount payable under the judgment or decree before it reaches the hands of his client. Such orders are made before the judgment-debtor has actually paid over the amount or if the judgment-debtor has parted with the amount, the amount is a fund in Court or is deemed to be a fund in Court; but if that amount has actually reached the hands of the client, it must be treated as any other amount of money in the hands of the client. After it reaches the hands of the client, there would not be any question of declaring a lien thereon or giving a charging order thereon. In such an event the solicitor must obtain a pay order and execute the same against his client and attach the said amount in the hands of the client like any other moneys or properties of his client. Un-doubtedly the use of the word 'lien' in the case of a solicitor's particular or common law lien is a misnomer, because such a lien of the solicitor is not based on any possession by the solicitor, but even then such so-called lien, which really is an equitable interference by the Court, must of necessity be applicable only to cases where the fund has not reached the hands of the client. Against the fundamental position which to my mind is quite clear on first principles, Mr. Parpia advanced several arguments which I will now proceed to consider.
14. For the purpose of showing what is the nature of a solicitor's lien Mr. Parpia had cited the case of In re, Tyabji and Co., 7 Bom LR 547. For the purpose of the point at present under discussion the judgment in that case is not useful. However, at pages 555-556 the head-note of the case of Cullianjee v. Raghawjee as reported in 6 Bom LR 879, is reproduced and the same is followed by a passage from the judgment of Chandavarkar J., appearing at page 883. That passage is as follows:
'That this Court has a summary jurisdiction over its suitors for the purpose of enforcing a solicitor's lien for costs, and that in enforcing it the Court must be guided by the principles of English Law.'
15. Now, turing to that case of 6 Bom LR 879, it appears that Cullianjee filed a suit against his adoptive mother Laxmibai and others to establish his rights as an adopted son. In that suit an order had been passed restraining Cullianjee from receiving possession of certain properties till further orders of the Court. Later, Cullaianji took out a notice of motion for the said order being discharged on the ground that he had effected a compromise with Laxmibai and had satisfied her claims. Laxmibai's solicitors appeared on that notice of motion and applied for an order that Cullianji should be ordered to deposit Rs. 9,000/- as security for the costs of Laxmibai payable to them, contending that the alleged compromise and the payments made thereunder to Laxmibai were collusive & fraudulent. Cullianjee disputed the rights of Laxmibai's collocutors to come in & oppose his notice of motion. Cullianjee even denied that Solicitors in India had any lien of the nature claimed and that the only lien of a solicitor was that given under Sections 217 & 221 of the Indian Contract Act. In considering this contention Chandavarkar J., referred to certain authorities and then arrived at the conclusion contained the passage quoted above. That conclusion is with regard to the position of the solicitor and his lien as against the other party to the suit which party was not the client of the solicitor. But it was that other party who had moved the Court by that notice of motion and it is that other party intended to be referred to by the words 'its suitors'. What was decided was that even when the other party moved the Court for relief that other party being a suitor before the Court, the Court had the right to interfere on behalf of the solicitor in the exercise of its equitable jurisdiction before granting the relief prayed for. That case is therefore of no help in deciding the point at present under consideration, as to whether a solicitor has any lien on the amount already recovered by the solicitor's own client under a decree in his favour.
16. Again Mr. Parpia relied upon the same words, viz., 'The Court has general jurisdiction over its suitors' appearing in the judgment of Jenkins J., in Khetter Kristo Mitter v. Kally Prosunno Ghose, ILR Cal 887. In that case a decree was passed in favour of the plaintiff against the defendant. The plaintiff's attorney had a lien on the decretal amount for his costs. In execution of the decree the plaintiff attached certain property of the defendant. in the meantime the defendant settled with the plaintiff personally without the intervention of the attorney on either side and an application was made thereafter tot eh Court for a stay of the sale. The compromise made no provision for payment of the plaintiff's attorney's costs. The attorney applied for an order upon the plaintiff and the defendant for payment of his costs and in default that he may be at liberty to proceed with the sale of the property attached. After considering the facts and circumstances of the case the Court directed payment of the costs by the plaintiff and the defendant. it is to be noted that the order made against he plaintiff, i.e., the solicitor's own client, was a simple order for payment of money and there was no question of making any order declaring a lien on the moneys in the hands of the plaintiff received by him under the compromise. This case again is therefore of no help in the decision of the point at present under consideration as to whether a solicitor has a lien on the amount already in the hands of his client by way of the realisation of a decree in his favour.
17. In this connection Mr. Parpia also drew my attention to the following passage occurring in the judgment of Taraporewala J., in Ved and Sopher v. R.P. Wagle and Co., ILR Bom 505 : AIR 1925 Bom 351 :
'He gives an instance:-- an execution had issued and been carried out so that the execution-creditor had received the money; in such a case and application by the solicitor would be too late. Or again, if the client had received the money and paid it over to some creditor of his, in such a case the right of the solicitor would be at an end.'
Now, what Mr. Parpia relied upon is not the judgment in this case but only the above passage, which is a mere quotation from the judgment of Brett L.J. in Shippey v. Grey, (1880) 49 LJ QB 524. In that judgment of Brett L.J. the following passage occurs at page 527 of the report, viz:
'If indeed, before a solicitor takes any steps the money in question has been disposed of in some way beyond the power of the Court, so that the Court has no longer any jurisdiction over it, then the right of the solicitor would be at an end, for the Court would be powerless to interfere. If, for instance, an execution had issued and been carried out so that the execution creditor had received the money, in such a case an application by the solicitor would be too late; or, again if the client should have received the money and paid it over to some creditor of his, in such a case the right of the solicitor would be at an end.'
Now, what is stated in the above passage was not applicable to the facts of that particular case, but is only a general observation on the subject of the solicitor;s lien. The above passage first contains a statement of a principle and later contains two illustrations of that principle. The principle is that if before the solicitor takes any steps in enforcing his lien, the money in question has been disposed of in some way beyond the power of the Court, then the right of the solicitor is at an end. In the first illustration taken the money has reached the hands of the execution creditor and that is why the lien is at an end. In the second illustration, it is the client who received the moneys and paid it over to his creditor and the money having gone out of the reach of the Court the solicitor's lien is at an end. It is on this second illustration that Mr. Parpia based an argument. He argued that the lien would come to an end only if the client has received the money and paid it over to his creditor, but not if the client has received the money, but the money is still in the hands of the client. He argued that two conditions are stated on the existence of which the lien would be lost and that therefore it must be inferred that if the second condition is not fulfilled the lien is not lost. Now, firstly, this illustration was not directly necessary for the decision of that case before Brett. L.J., and secondly, there is not even an expression of any opinion by that learned judge as to whether the lien would be lost or not if the second condition in that illustration happened to remain unfulfilled. The result is that I am left to ascertain for myself on first principles what would be the effect on the solicitor's lien if only the first condition mentioned in the illustration happens to be fulfilled and not the second. And on first principles, as already stated by me, I do not see how a lien can be declared on moneys already in the hands of the client. In such a case to declare a lien would be ineffective as the real remedy would be a pay order and an attachment thereunder.
18. I, therefore, hold that there can be no declaration of lien or a charging order in favour of the applicants as against the amount of the decree already recovered by the Custodian either in respect of earlier costs or even in respect of subsequent costs.
19. That leaves for consideration what reliefs, if any, the applicants are entitled to in respect of prayer (b) of the summons. here again, there are two points for consideration, viz.,
(1) Are the applicants entitled to an order for payment in respect of the earlier costs, and
(2) Whether there can be an order for payment of either the amount of the earlier costs or even the subsequent costs out of the amount the Custodian may have recovered or may hereafter recover from the Defendants under the said decree dated 25-1-1955 passed in this suit.
20. I will now deal with the said first point viz., whether the applicants are entitled to an order against the Custodian for payment of the earlier costs. I have already noted that Mr. Thakore does not dispute that an order for payment can and may be made against the Custodian in respect of the subsequent costs. So far as such an order for payment of earlier costs is concerned, Mr. Thakore contended that the applicants are not entitled to the same because of the said agreement between the parties. Now, so far as the subsequent costs and the earlier costs are concerned, there is a material difference between the two. When the said agreement was entered into both parties knew that the Custodian was going to be added as a Plaintiff in this suit and that the applicants would be acting as his solicitors also. if the Custodian engaged the applicants as his solicitors, the Custodian would be personally liable to the applicants for their costs, such as were incurred since the time he engaged them as his solicitors. The Custodian is empowered to institute, defend or continue legal proceeding on behalf of an evacuee under Section 10(2)(j) of the Administration of the Evacuee Property Act, 1950 and to incur expenditure under Section 10(2)(m) of the said Act. If therefore the Custodian engaged the applicants as his attorneys, the Custodian himself would be liable to the applicants for payment of the costs incurred since the date when he engaged them. But so far as the earlier costs are concerned, the same had been incurred by the Plaintiff and before the Custodian came on the scene. both the Custodian and the applicants at the time of the said agreement knew that the Plaintiff was an evacuee and they also know that the applicant's right to be paid the earlier costs was against the Plaintiff. The Plaintiff being an evacuee the applicants could claim payment from the Custodian only out of the properties of evacuee in the hands of the Custodian and the Custodian can under Section 10(2)(n) of the said Act pay the same to the applicants 'out of the funds in his possession.' And the said Rule 22 provided that a person like the applicant who claims the right to receive any payment from any evacuee should do to obtain such payment, viz. make an application to the Custodian by presenting a petition. It is it seems because of this difference between the subsequent costs and the earlier costs that in the case of the subsequent costs, the Custodian by the agreement agreed to be liable for the same and even on this summons he does not oppose a pay order for the same being made against him personally. But in respect of the earlier costs, the agreement, because of that reason, stipulates that the applicants should put in a claim in the ordinary way or in the manner provided under the said Rule 22. The ordinary way for payment of money due by an evacuee was to put in a claim as provided under the Code of Civil Procedure. On receipt of such application if the Custodian finds the claim supported by a decree of a competent Court or by a registered deed as mentioned in Sub-rule (2) of the said Rule 22, the Custodian is to register deed, the Custodian had to direct the claimant to establish his claim in a Civil Court. Now the Plaintiff's claim in this suit was evacuee property. But the same not having been declared to be evacuee property under Section 7 of the said Act, the same had not vested in the Custodian. If the Custodian had chosen not to proceed with suit, although in fact he did choose to proceed on and after 16-8-1952, the applicants would have had to proceed under the said Rule 22 to recover the costs of the suit incurred till then, which were payable by the evacuee Plaintiff. When they lodged their claim the same would have had to be supported by a decree or order of a competent Court. The applicants being solicitors however would have got their bill taxed and obtained a pay order. That pay order would have been against the Plaintiff and not against he Custodian & it is this same thing which was stipulated for by the said agreement in respect of the earlier costs, the Custodian was not personally liable for payment of the same and the mode of recovery thereof was to be by the applicants presenting a petition before the Custodian supported by a decree, which in this case would have been a pay order against eh Plaintiff. By their very first letter dated 18-7-1952, the applicants did inquire of the Custodian whether the Custodian would agree to pay the bill of costs of the suit, which would include the earlier costs. By this inquiry the applicants asked the Custodian whether he would make himself personally liable for the earlier costs and it was after that inquiry that the said agreement was arrived at that the applicants should put in a claim in the ordinary way and under the said Rule 22. It means that the Custodian declined to render himself personally liable for the earlier costs and it was agreed that the applicants should put in a claim for the same under Rule 22. I am therefore of the opinion that the applicants are not entitled to any pay order in respect of the earlier costs against the Custodian. The applicants would be entitled to pay order for the earlier costs against eh Plaintiff. But as this summons is not directed against the Plaintiff and there is therefore no such prayer I cannot make such pay order against the Plaintiff on this summons.
21. Mr. Parpia had argued that the agreement was to put in a claim under Rule 22 and that agreement by implication pre-supposes that when the time arrived for the applicants to put in their claim for the earlier costs the said Rule 22 must be in existence. The said allocatur for the applicants' costs was issued on 12-2-1957. But within a short time thereafter the said Rule 22 was deleted by Section 3 of the notification dated 20-2-1957 published at p. 390 of the Gazette of India, Part II, dated 2-3-1957. Mr. Parpia argued that therfore the said agreement was frustrated and became impossible of performance and that therefore the applicants are entitled to a pay order for the earlier costs against he Custodian. now, it should be noted that the said Rule 22 merely provided for a method of recovering payment, but actual payment by the Custodian is provided for by Rule 43 which has not been deleted. Making a payment under Rule 43 is not confined to a claim made under the said Rule 22 only. Therefore if Rule 22 is deleted, it is only the mode o making a claim as mentioned in that rule which is done away with. But the applicants can still make a claim in any other way and the Custodian is not prevented from making a payment thereof if there is no other bar or hindrance. But apart from that reason there is yet another and a much stronger reason why even on the deletion of the said Rule 22, the applicants cannot get a pay order against the Custodian and the same is that, as already seen, it was at no time a personal liability of the Custodian to pay the earlier costs to the applicants and that therefore there can be no pay order against eh Custodian. If a pay order is made against the Custodian it would render him personally liable whereas under the circumstances aforestated it is clear that so far as the Custodian is concerned the applicants are entitled to be paid only out of the funds of the evacuee in the hands of the Custodian. I, therefore, hold that the applicants are not entitled to any order against he Custodian for payment of the earlier costs.
22. In connection with his argument regarding prayer (b) of the summons, Mr. Parpia and also relied on Eisdell v. Coningham, (1859) 28 LJ Ex. 213. In that case Eisdell had obtained a judgment against Coningham. Eisdell thereafter took out a summons to attach a judgment-debt recovered by Coningham against Squire for o54 and costs. The attorney of Coningnam thereupon took out a summons calling upon Eisdell to show cause why he should not pay the said sum of o54 and costs. Both the said summonses stood adjourned, but in the meantime Squire paid the judgment-debt to Eisdell, although Eisdell had full knowledge of the lien of Coningham's attorney. Thereupon the money was ordered by Williams J. to be paid into Court. Coningham's attorney thereupon obtained a rule for payment of that money out of Court and it was held that Eisdell, knowing of the lien, had no right to receive the money quotable belonging to another; although the garnishee, i.e, Squire might bona fide pay him Mr. Parpia pointed out that in that case Squire had paid the money to Eisdell and Eisdell had actually received it, but still Williams J. ordered Eisdell to pay the money into Court on the ground that Eisdell having knowledge of the lien of Coningham's attorney had no right to receive money which was held to belong equitably to Coningham's attorney. Mr. Parpia argued that like Eisdell in that case the Custodian in this case did have notice of the lien of the attorney, that in this case the Custodian is as a matter of fact himself one of the joint decree-holders and that therefore the Custodian had no right to receive the money which the Custodian has in fact received because that money belonged equitably to the applicants. To my mind this argument of Mr. Parpia is not based on a correct appreciation of the ratio of the judgment in that case. That judgment is on the question of the effect of a garnishee order and not on the question of the lien of a solicitor. I am supported in this my view by the fact that the said case has been cited in Halsbury's Laws of England not in the Volume dealing with Solicitor's lien but in the Volume dealing with Execution under the subject of Garnishee proceedings. In garnishee proceedings the attaching creditor first obtains a rule nisi, which he obtains ex parte without notice to the garnishee. The order nisi gives no rights to the judgment-creditor, i.e., the attaching creditor, until it has been served on the garnishee. Nor will the service of the order give the judgment-creditor priority over equitable charges existing at the date of the service even when no notice has been given, nor over existing liens. The said judgment is therefore a decision as to the right of priority of Eisdell the attaching creditor and the lien of the solicitor of Coningham. What Eisdell had obtained was only an order nisi and when Williams J. ordered Eisdell to pay money into Court there was yet no order absolute in favour of Eisdell. Squire having paid to Eisdell bona fide he could not be asked to pay over again. But Eisdell had received the money before the order nisi had been made absolute and with knowledge of the solicitor's lien. Before an order absolute was made in favour of Eisdell the solicitor had himself taken out a summons in respect of the costs payable to him. It was under these circumstances held that the money equitably belonged to the solicitor because of his lien and Eisdell who had not yet had any order absolute in his favour was not entitled to receive the money in priority to the solicitor's claim. It was because of this reason that Eisdell must have been ordered by Willam J. to bring the money into Court, although in the said report of the case the judgment, if any, of Williams J. where he ordered the money to be paid into Court is not to be found. Now, what Mr. Parpia contended was that just as Eisdell was ordered by Williams J. to bring the money into Court, similarly the Custodian who also received payment with knowledge of the applicants' lien can be ordered to bring the amounts received by him under the decree into Court and that the applicants' claim should first be satisfied out of the same and only the balance can be paid over to the Custodian. He argued that therefore prayer (b) of the summons before me really amounts to the same thing because, instead of ordering the Custodian to bring in the whole amount and thereafter the applicants being paid thereout and the balance being repaid to the Custodian, this prayer (b) asks for an order directly against the Custodian, but restricted to the amount recovered by him under the decree. In my opinion, whatever way prayer (b) may be construed, the case of (1859) 28 LJ Ex. 213 is not an authority which supports the contention that if the client has already received payment under the decree before the solicitor has perfected his so-called lien, the solicitor can subsequently come forward & ask for an order of the nature applied for by this summons. What is more, this order prayed for under prayer (b), even on Mr. Parpia's said contention, is not in the nature of a pay order but is in the nature of enforcing the solicitor's lien and it shall be remembered that orders made for enforcing or protecting the solicitor's lien are in the nature of an equitable interference by the Court. I do not see how equity demands such an order being made in this case. Undoubtedly the Custodian continued the suit in which the applicants had put in labour before the Custodian came on the scene and that labour did contribute to the decree which was ultimately passed. But it is also a fact that the solicitors knew that the decree was in favour of the Custodian also and that therefore the Custodian may receive payment thereunder unless the applicants acted promptly and interposed their lien before the Custodian could receive any payment under the decree. This the applicants failed to do. The result having been caused by the negligence of the solicitors themselves, the solicitors cannot invoke any equitable interference by this Court to undo the effect brought about by their own negligence.
23. Coming to the said second point whether there can be an order for payment even for the subsequent costs because I have now already held that there can be no order for payment of the earlier costs out of the amount the Custodian may have received or may hereafter recover from the Defendants under the decree in the suit, I must observe that this is a very unusual prayer. I have not known of any such prayer having been even asked for in any other matter, nor has any precedent or authority been cited in support thereof. So far as this prayer asks for an order for payment out of the amount the Custodian may hereafter recover, apart from the question whether it is competent or not, it is now unnecessary, as I propose, for reasons already stated by me, to make a declaration of lien and charging order against the unrecovered portion of the decree. But so far as the prayer asks for an order for payment out of the amount already recovered by the Custodian it is in my opinion incompetent. Pay orders are made, so far as our High Court is concerned, under Rule 1079 of the Rules of our High Court on its Original Side and that rule does not provide for an order being made for payment out of a specific fund or property. Making of such an order would really amount to giving a charge, which, in my opinion, is not warranted. I therefore hold that against prayer (b) the only relief the applicants are entitled to is to obtain a simple order for payment against the Custodian for the amount of the subsequent costs.
24. At one stage Mr. Parpia appeared to argue the point of what he called appropriation. His argument appeared to be that the amount which may be realised from the Defendants out of the unrecovered portion of the decree should first be ordered to be appropriated towards earlier costs. The reason why the applicants desire such an order to be made is obvious. The applicants may have anticipated that in respect of the earlier costs they may succeed in getting only a declaration of lien and charging order on the unrecovered portion of the decree but not a pay order against the Custodian. They knew that the Custodian was not resisting a pay order being made against him for the subsequent costs. The applicants must therefore have desired that as the Custodian was agreeable to be made personally liable for the subsequent costs, the earlier costs should, to the greatest extent possible, be sought to be recovered in the first instance from the realisations of the unrecovered portion of the decree over which the applicants may possibly succeed in obtaining a charging order. Mr. Parpia therefore argued that the realisations of the unrecovered portion of the decree should be ordered to be appropriated in payment of the earlier costs and only the balance if any in payment of the subsequent costs. Mr. Parpia stated, and it was only a bald statement, that in support of this argument he relied upon the rule in Clayton's case (1816) 35 ER 767. The judgment in Clayton's case (1816) 35 ER 767, was however not referred to nor was any argument advanced as to how the same applied to this particular contention of the applicants. I should record that this argument was not put forward seriously, with the result that even Mr. Thakore, when he was replying to Mr. Parpia's argument, was a loss to know whether any such argument had been seriously pressed against him, and if so, what exactly was the argument. I thereupon pointed out to Mr. Thakore that I had myself not fully appreciated what Mr. Parpia's argument on this point was and that so far as I could see Mr. Parpia had not seriously pressed it. Mr. Parpia did not give up that argument in so many words, but when I informed Mr. Thakore that it was not necessary for Mr. Thakore to argue that point as so far as I could see Mr. Parpia had not seriously pressed it or even presented it in an appreciable manner. Mr. Parpia did not contradict it. The argument was not developed fully or even to an extent which would make it possible for the Court to appreciate and I therefore do not think it necessary to deal with the same.
25. I have held that the applicants are entitled to a lien against the unrecovered portion of the decree in respect of even the earlier costs. I have stated that the liability to pay the earlier costs is of the Plaintiff and not of the Custodian. I have also stated that this chamber summons has not been directed against the Plaintiff. But in spite of these facts I am still of the opinion that the applicants are entitled to a declaration of lien and charging order in respect of earlier costs because the decree is not in favour of the Plaintiff alone but the same is in favour of the Custodian also. Because of the provisions of the Administration of Evacuee Property Act the amount which the Plaintiff would have been entitled to is recoverable by the Custodian and the decree has also been passed in favour of the Custodian together with the Plaintiff. The Custodian himself can directly recover the amount under the decree and I think that therefore a declaration of lien and a charging order in respect of the earlier costs should be made although this Chamber Summons is not directed against the Plaintiff.
26. Under the circumstances and in view of my above judgment I make the following orders i n respect of the various reliefs prayed for by this Chamber Summons, viz.,
In respect of prayer (a): there will be a declaration that the applicants are entitled to an attorney's lien, on the balance still remaining due & payable by the Defendants to the Plaintiffs under the decree dated 25-1-1955 passed in favour of the Plaintiff herein for the party and party and the attorney and client costs certified to the applicants under the Taxing Masters Allocatur herein dated 12-2-1957.
In respect of prayer (b): the Plaintiff No. 1 is ordered to pay to the applicants that part of the said costs certified by the said Allocatur, both party and party & attorney & client, which have been incurred on and after 16-8-1952. I direct that the Taxing Master do, out of the said costs certified by him by his said Allocatur dated 12-2-1957, separately allocate the costs, both party and party and attorney and client, as being payable for the period commencing from 16-8-1952.
In respect of prayer (c): I order that the balance still remaining due and payable by the Defendants to the Plaintiffs under the decree herein dated 25-1-1955 be and that the same is hereby charged with the payment of the said costs, both party and party and attorney and client, certified to the applicants under the Taxing Master's said Allocatur herein dated 15-12-1987.
27. The applicants have lost on certain points and the Custodian has lost on certain other points. The success of each party is fairly even. The fair order for costs would therefore be that each party do bear his own costs of this chamber summons.
28. The said allocatur dated 12-2-1957 is in respect of costs up to January 1956 only. The order made by me hereby is confined to the costs up to January 1956 and for the sake of clarity I may mention that this order doe snot in any way deal with the applicants' costs subsequent to the period covered by the said allocatur.
29. Order accordingly.