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Ghulam Mohideen Sahib Vs. Md. Oomer Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1931)60MLJ133
AppellantGhulam Mohideen Sahib
RespondentMd. Oomer Sahib and anr.
Cases Referred(Devakabai v. Jefferson I.L.R.
Excerpt:
- - i am satisfied that it was with the active help of rajabahadur that dawood saheb took this step. 4. 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? the english cases also show very clearly that this common law lien has not been abrogated by statute. 248.) 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......ghulam mohideen. nothing seems to have been done for about six years. then in april, 1930, at his client's request, the attorney filed his bill of costs which was taxed by the registrar on the 28th of april, 1930. in doing 'so, the registrar overruled the objection of rajabahadur, the legal representative of govindarajulu, 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 the 7th of august, 1930.2. i must now turn to a suit filed by dawood saheb against ghulam mohideen, c.s. no. 76 of 1925. in that suit, on the 26th of july, 1925, dawood obtained a decree against ghulam mohideen. in execution of that decree, he applied on the 2nd of august, 1930, for attachment of the order for.....
Judgment:

Venkatasubba Rao, J.

1. 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 the 17th of 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 filed his bill of costs which was taxed by the Registrar on the 28th of April, 1930. In doing 'so, the Registrar overruled the objection of Rajabahadur, the legal representative of Govindarajulu, 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 the 7th of August, 1930.

2. I must now turn to a suit filed by Dawood Saheb against Ghulam Mohideen, C.S. No. 76 of 1925. In that suit, on the 26th of July, 1925, Dawood obtained a decree against Ghulam Mohideen. In execution of that decree, he applied on the 2nd of 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 the 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.

3. 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 1 have already referred, he was out of pocket by Rs. 36. The costs allowed to him on taxation amounted to Rs. 500 and odd. What is urged by Dawood's Counsel is, that the business for which the Attorney was employed terminated on the 17th of December, 1924, and that the Attorney's claim for costs against his client was therefore barred under Article 84 of the 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 hitter'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.

4. 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 Amberson Marten, C.J., and Mr. justice Blackwell in Tyabji Dayabhai & Co. v. Jetha Devji & Co. I.L.R. (1927) B. 855. 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 possessory Hen by reason of certain property like1 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 Mr. Justice Farwell in In re Born (1900) 2 Ch. 433, 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 Mr. Justice Swinfen Eady in In re Meter Cabs, Ltd. (1911) 2 Ch. 557 and of Lord Justice Cotton and Lord justice Lindley in Guy v. Churchill (1887) 35 Ch. D. 489. 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 Chief Justice Sir Charles Sargent 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., cap. 127, (the Solicitors'. Act, 1.860), 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 client in the suit.' (Devakabai v. Jefferson I.L.R. (1886) B. 248.)

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 assignee 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.

6. Then remains the question, what is the order I am to make? Dawood Saheb after obtaining the attachment has realised the sum from Rajabahadur; at any rate he says so, and what is material is, that on the 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.

7. It follows from this that the jewels in Court must be returned to Rajabahadur and I make an order accordingly.

8. In view of the fact that Mr. Sudarsana Raju slept over his rights for about six years, I make no order as to costs.


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