NARHNDRALA LAL KHAN Vs. TARUBALA DASI

JUDGEMENT

(1.) This is an application by an Attorney under Rule 59, Chapter XXXVIII of the High Court Rules, for an order against his client for payment of the sums amounting to Rs. 531-14 0 allowed on taxation of four bills of costs in respect of non-contentions badness. It appears that the Attorney also anted for the client in several other proceedings, being certain execution oases in one of which a considerable sum of money was recovered by the Attorney and war pat into his hand on behalf of his client, Differences of opinion arose between the parties as to whether the particular or active lien of a Solicitor in respect of the sum of money 53 relieved was available for his costs in all or in only one of the execution matters, bat by an order obtained from Mr. Justice Buckland the Attorney has succeeded in having it declared that his particular or active lien extends to all these contentions proceedings,

(2.) The main difficulty now is due to the fact that before the money in question was recieved by the Attorney over three years bad elapsed since the completion of the work comprised in each of the four bills of costs. The order of Mr. Justice Back-land, as I construe it, merely directed that these bills of costs should be taxed and that any moneys over and above the amount which in any event would be sufficient to satisfy the Attorney s claim should be re- paid by the Attorney to the client at once. It in no way decided whether these bills of costs were in fact due from the client to the Attorney or not, but it did declare that to the extent to which these bills, when taxed, were due and payable the Attorney should have a right to a set off. In addition to the particular or active lien which an Attorney baa upon monies which have been recovered in a suit, the Attorney has a general or passive or retaining lien upon all moveables, deed, documents, and so forth that come into his hands unless they come for a specific purpose which would be inconsistent with the right of retainer; but Mr. Justice Buckland in this case has definitely decided, as appears more clearly from his judgment than from the form of the order, that with regard to the four bills of costs in question, the Attorney has not got the right to- exercise any lien.

(3.) Now, the law on the subject, so far as it is necessary to state it, stands thus. By Section 28 of the Limitation Act of 1908 it is provided that "on the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished"; but in the case of a personal action for a debt limitation merely bars the plaintiff from having the particular remedy by way of suit and does not extinguish the debt. Thus, if the Attorney has any form of lien upon property in respect of his bills of costs he can exercise that lien notwithstanding that, by the terms of the Limitation Act, be could not bring a suit. The next proposition of law which is of some importance is this, that so far as the position of a defendant asserting a right of set off is concerned, the limitation bar does apply to him. It applies to him as if he were bringing an independent end of his own, the only difference Wing that, where he is defending himself by way of set off, if his claim was not barred at the time of the issue of the plaint, he may prosecute a set-off even although the time may have elapsed before his filing, say, a written statement claiming the set-off. But with that exception as to the terminus ad quem of the pericd of time, it is the law in India as well as in England that limitation applies to a set-off. Now, in this case, the question of passive lien or right of retainer having been disposed of by Mr. Justice Buskland s judgment and the right of set-off being subjecte to the principle of limitation, it is or may be a matter of real importance whether, under Rule 59, I can make an order against the client for payment.