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A. Haji Ismail and Co. Vs. Rabiabai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in4Ind.Cas.135
AppellantA. Haji Ismail and Co.
RespondentRabiabai
Excerpt:
partnership assets (sic) by the (sic) of solicitor--solicitor's prior lien for costs on such assets--assets in the hands of receiver--creditor of partnership should not obtain execution against such assets--proper course to obtain a charging order--practice. - .....86 l.t. 655 is a direct authority for holding that where there are assets of a partnership in the hands of a receiver appointed in a partnership suit, the solicitors engaged in that suit are. entitled to ask for a charge on those assets in 'priority to the creditors of the partnership.4. apart from that the procedure adopted by the plaintiffs in this suit is, in my opinion, wrong. they should not have issued execution against the assets in the hands of the receiver. the proper course was to ask the court for a charging order in the form granted by kay, j. in kewney v. attrill (1886) 34 ch. d. 345: 56 l.j. ch. 448: 35 w.r. 191: 55 l.t.805. the assets of the partnership can then be dealt with by the court by giving directions to the receiver and it is desirable that this procedure should.....
Judgment:

Macleod, J.

1. The two defendants in this suit were partners and in a suit No. 96 of 1907 filed by the first defendant against the 2nd defendant for dissolution of partnership a receiver was appointed to get in the assets. The receiver has now in his hands a sum of about Rs. 1,698 as assets and it is not considered likely that he will recover anything more.

2. The plaintiffs in this suit having obtained a decree against the defendants were granted leave to issue execution against the assets of the partnership in the hands of the receiver and a prohibitory order was issued on the 19th June 1908. They have now taken out a garnishee notice against the receiver to pay to the plaintiffs the money in his hands. I am told that no other claims have been made against these assets but a question arises whether they are not subject to the lien of the solicitors in the partnership suit for their costs.

3. The rule at common law that a solicitor is entitled to a lien for his costs on property recovered or preserved by his exertions has always been followed by this Court and the case of Ridd v. Thorne (sic) 2 Ch. 344: 71 L.J. Ch. 624: 50 W.R. 542: 86 L.T. 655 is a direct authority for holding that where there are assets of a partnership in the hands of a receiver appointed in a partnership suit, the solicitors engaged in that suit are. entitled to ask for a charge on those assets in 'priority to the creditors of the partnership.

4. Apart from that the procedure adopted by the plaintiffs in this suit is, in my opinion, wrong. They should not have issued execution against the assets in the hands of the receiver. The proper course was to ask the Court for a charging order in the form granted by Kay, J. in Kewney v. Attrill (1886) 34 Ch. D. 345: 56 L.J. Ch. 448: 35 W.R. 191: 55 L.T.805. The assets of the partnership can then be dealt with by the Court by giving directions to the receiver and it is desirable that this procedure should be followed in future.

5. I discharge the prohibitory order and garnishee notice and give the plaintiffs a charge on the moneys which are in the hands of or which may be taken possession of by the receiver and they must undertake to deal with the charge according to the order of the Court. The charge will be for the judgment debt and costs and interest and the costs of this order. The lien of the solicitors for their costs in the partnership suit will take priority over this charging order.


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