(1.) This is an application by a firm of attorneys, who carry on business under the name and style of H.N. Dutta & Co., and another attorney, Mr. D.C. Mitter. H.N. Dutta & Co. consist of three partners. When the warrant of attorney in this case was executed, Mr. D.C. Mitter was a member of the firm in addition to the three gentlemen who are now partners. Mr. Mitter has ceased to be a member of the firm with effect from 31 May 1940. I notice that both the firm and the former partner, and for that matter the attorney representing the defendant in this application, observe the now prevalent custom of misdescribing themselves as solicitors, a breach of the legal profession not recognized by the Charter or rules of the original side, except in so far as under chap. 2 of the rules solicitors of the Supreme Courts of Judicature in England and Northern Ireland are entitled to be admitted as attorneys of this Court. At the time when the notice of this application was served, the firm, as at present constituted, was not registered under Secs.58 and 59, Partnership Act. It is argued that this is a proceeding to enforce a right arising from a contract within the meaning of Section 69(2) of that Act, and that therefore it cannot be instituted as long as the firm is unregistered. I may say at once that if I find this to be the only ground on which the application can be resisted I am willing to preserve the status quo in order that the firm may obtain registration, if they have not already done so, and thereafter take out a fresh application.
(2.) The circumstances in which the present application is made are these. In 1935 the defendant Jogendra Chandra Goopta, whom I shall hereafter call "the client", gave a warrant of attorney to the firm of H.N. Dutta & Co., to act for him in the present suit, which is a suit for the partition of his father's estate. The Official Receiver is now receiver of the estate and a preliminary decree for partition was made on 19 November 1936. There are difficulties in tracing some of the securities belonging to the estate, and the Commissioner has decided to make an interim partition of the admittedly available assets. The scheme was approved. by the Court on 15 May 1940 and by the order then made the Official Receiver was directed to make payment out of the funds in his hands to the parties concerned in terms of the scheme. By an interim return the Commissioner has allotted the client a sum of Rs. 22,000, and directed that it should be paid to him in cash or in Government securities of the equivalent value. The attorneys now apply for an order that a lien or charge be declared on that sum in the hands of the Official Receiver for their costs, charges, and expenses, in reference to the suit.
(3.) In India there are no legislative enactments dealing generally with the rights and liabilities of attorneys. It is however well settled that attorneys practising before the old Supreme Court, and on the original side of the present High Court, had and have, subject to the rules, the rights enjoyed at common law by solicitors, attorneys, and proctors in England prior to the Judicature Act, 1873, under which the three classes of practitioners were abolished, and all became solicitors of the Supreme Court of Judicature. One of the many cases in which this has been recognized is Premsukhdas Singhania V/s. N.C. Bural and Pyne . I think it has never been disputed that among these rights is the right of an attorney to ask this Court to direct that personal property, recovered under a judgment obtained by his exertions, stand security for the costs of recovery. This so called "lien" has been extended by statute in England to real estate. Its present statutory recognition is to be found in Section 69, Solicitors Act, 1982. That section makes it clear that the power to make an order enforcing the statutory lien is discretionary, and I take it the same is true of the common law lien. It would seem that an attorney's position is even stronger with regard to a fund in Court. I take the following passage from Cordery's "Law relating to Solicitors" Edn. 4, page 492: When there is a fund in Court, the solicitor's lien independently of the statute, and without any declaration thereunder, is an absolute charge thereon, and has priority over any other assignment or charging order obtained with or without actual notice.