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Khetter Kristo Mitte Vs. Kally Prosunno Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal887
AppellantKhetter Kristo Mitte
RespondentKally Prosunno Ghose
Cases ReferredChristian v. Field
Excerpt:
costs - attorney's lien for costs--general jurisdiction of court over all suitors--compromise by parties without knowledge of attorney--lien, notice of--attorney and client. - .....no provision for payment of babu mohini mohun chatterji's costs, and he has accordingly made this present application that the plaintiff and the defendant, or either of them, be ordered to pay to him rs. 914-4-9, being the balance of his costs, and also his. costs subsequent to the decree to be taxed, and in default that he be at liberty to proceed with the sale of the property attached or for such other order as to the court may seem meet.4. this claim on the part of the applicant is based on the right commonly known as an attorney's lien on the fund recovered in suit. whether that is the most appropriate mode of description it is unnecessary to discuss, for the nature of the right is free from doubt.5. it is a claim on the part of the attorney to have secured to him his due reward out.....
Judgment:

Jenkins, J.

1. This suit was commenced in 1887, the attorneys for the plaintiff being at that time Messrs. Gregory and Jones. Later on there was a change to Babu Mohini Mohun Chatterji, and on the occasion of that change he paid a sum of Rs. 2,192-7-6 to the former attorneys at the plaintiff's request. On the 9th September 1895 a decree was passed, and by it a sum of Rs. 17,000 became payable from the defendant to the plaintiff. Each party was to bear his own costs of the suit. The costs up to and including the decree have been taxed as between attorney and client, and Rs. 2,017-13-6 have been allowed on that taxation. Subsequent costs to the amount of Rs. 613 have also been incurred. From time to time payments on account have been made, which leave Rs. 914-4-9 still due from the plaintiff to Babu Mohini Mohun Chatterji on account of his costs, besides subsequent costs which are still untaxed.

2. In execution of the decree in the suit certain immoveable property was attached and advertised to be sold on the 10th March of this year.

3. In the meantime, however, the defendant had settled with the plaintiff personally without the intervention of the attorneys on either side, and an application was made on the 10th March for stay of the sale. That application was granted for the purpose of keeping matters solely in statu quo, and not so as to prejudice the rights which otherwise existed.

3. The compromise to which I have referred made no provision for payment of Babu Mohini Mohun Chatterji's costs, and he has accordingly made this present application that the plaintiff and the defendant, or either of them, be ordered to pay to him Rs. 914-4-9, being the balance of his costs, and also his. costs subsequent to the decree to be taxed, and in default that he be at liberty to proceed with the sale of the property attached or for such other order as to the Court may seem meet.

4. This claim on the part of the applicant is based on the right commonly known as an attorney's lien on the fund recovered in suit. Whether that is the most appropriate mode of description it is unnecessary to discuss, for the nature of the right is free from doubt.

5. It is a claim on the part of the attorney to have secured to him his due reward out of the fruit of his labour, and for that purpose to call in aid the equitable interference of the Court. But while the right is clear, it must be conceded that the litigants themselves are really masters of the suit, and that it is within their power to compromise it without the acquiescence or even the knowledge of their attorneys. The exercise of this right, however, is subject to important qualifications. In the first place the compromise must have been made with the honest intention of ending the litigation, and not with any design to deprive the attorney of his costs; and, secondly, no payment can be made under the compromise to the prejudice of the attorney's claim after notice of it. has been given to the person by whom the payment is made.

6. These principles appear to pie to be the clear result .of the authorities in England; and founded, as they are, on justice, equity and good conscience, I see no reason why they should not apply in this country. Now the applicant on this occasion claims that both conditions to which I have referred exist, though it is clear it would suffice for his purpose, if he can establish either of them. The facts on which he relies as establishing his position by virtue of notice given are set forth in that part of his affidavit which commences with paragraph 6. He says: 'I personally informed the defendant for whom I acted as attorney in a suit in this Honourable Court, being suit No. 770 of 1894, wherein Gooroo Prosunno Ghose was the plaintiff and the defendant herein was the defendant, of my said lien for costs, and at the time when I informed the defendant as aforesaid, Babu Prosunno Chunder Roy, a Vakil of this Honourable Court, who was instructing me on the defendant's behalf in the said suit, No. 770 of 1894, was present.'

8. 'That I have personally and repeatedly informed Babu Peari Mohun Chatterji, Dewan or Manager of the defendant's affairs, of my said lien.'

9. The facts set forth in the paragraphs which I have just read are uncontradicted, and it is admitted on the part of the defendant that he had notice of the claim for a lien, so that the case would appear to come within the second of the qualifications I have mentioned.

10. It has, however, been urged by Mr. Woodroffe, who has argued the case very fully and ably for the defendant, that it is not open to me to make the order asked for, and he has urged several objections. The principal objection is one which goes to the root of the whole matter, and I will, therefore, deal with it first. He contends that the Court has no jurisdiction brevi manu to make such an order as is asked for, and in support of the objection he refers to the absence of any practice justifying such a procedure as is sought to be used on this occasion. In addition he has referred to two cases: one the case of Domun v. Emaum Ally (1881) I.L.R. 7 Cal. 401; and the other the case of Mahommed Zohuruddem v. Mahommed Noorooddeen (1893) I.L.R. 21 Cal. 85.

11. The first of the two cases seems to me to have no application to the matter now under consideration. It simply refers to the question whether, on summary application, an order could be made directing a party to pay his attorney the costs of suit when taxed. It was held that such an order could not be made. That is a wholly different case from the present.

12. In the same way the case of Mahommed Zohuruddeen v. Mahommed Noorooddeen (1893) I.L.R. 21 Cal. 85 appears to me to throw no light on the point. The facts are shortly these: An attorney had by way of securing his costs taken a deposit of title deeds, and made a summary application in a suit to which he was no party to have that equitable lien enforced. It was held he should, if he desired to enforce his equitable lien, commence a suit of his own. I fail to see how a decision on those facts can in any way negative the applicant's right to proceed in the manner he has selected.

13. The present application appears to me to be based on the principle that the Court has general jurisdiction over its suitors, and I see no reason why that jurisdiction should not be as fully vested in a Court here as it is in the English Courts. I therefore think it is open to the Court to deal with this particular question on a summary application framed as the present is.

14. The other objection raised by Mr. Woodroffe were not of so far-reaching a character. He referred to Price v. Crouch (1891) 60 L. J. Q. B. 767 as authority for the proposition that notice of lien must be of a more definite character than the notice given in this ease. I find nothing in the decision given in that case which calls for the conclusion that the notice given by the applicant in the present case was insufficient, for there it was simply held as a matter of fact that the notice was insufficient, because it was not in any sense a notice of lien, but merely of an expectation that provision would be made for costs.

15. In the present case the attorney has given, in the clearest terms that could have been used, notice that he did claim a lien for his costs of the suit.

16. Another point urged by Mr. Woodroffe was this: He contended that inasmuch as part of the aggregate claim consists of costs paid to a prior attorney, no lien to that extent can be claimed, and in support of that proposition he referred to the case of Christian v. Field (1842) 2 Hare 177. That case is not an authority for the broad proposition in support of which it was cited.

17. Be this however as it may, the state of facts on which the argument is based has no existence here, for I do not find that the unpaid balance of costs is in any way made up of the amount paid by Babu Mohini Mohun Chatterji to Messrs. Gregory and Jones. That amount was the earliest item in the account, and if Mr. Woodroffe's argument is correct, it is unsecured, and I certainly should presume that the payments already received were, under the circumstances, attributed in the first place to the discharge of that amount.

18. I have now dealt with all the points raised except that as to the proper form of the order. I hold in this case that sufficient notice of lien was given by the attorney, Babu Mohini Mohun Chatterji, to the defendant before payment was made by him under the compromise, and I, therefore, come to the conclusion that Babu Mohini Mohun Chatterji's present application is rightly conceived. I may add, I think, it is very desirable in this country, both in the interests of attorneys and in the interests of litigants themselves that the Court should possess a power to interfere summarily, as has been done in this case.

19. I direct payment of the amount of costs, which have been taxed, and subsequent costs when they have been taxed, by the plaintiff and the defendant, including the costs of this application.

20. [Mr. Sinha asks that the application be certified for Counsel. The Court certifies for Counsel.]


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