GOBIND DAS BHATTAR Vs. GAJANAND PANDEY

JUDGEMENT

(1.) This is an application for payment to the petitioner of a sum of Rs. 1500 now lying in the hands of an attorney who acted for the defendant in a suit in which the petitioner is the plaintiff. It is opposed by the attorney who claims a lien for his costs on the sum in question. The relevant facts are as follows: The petitioner instituted a suit on 17 August 1939 for recovery of a sum of Rs. 3694-11-0 on a signed adjustment of account. In that suit on 18th August 1989, he applied for attachment before judgment of a decree which the defendant had obtained against one Prahladram on 8 August 1939, in suit NO. 1000 of 1938. On that date Mc Nair J. made an interim Order on the application restraining the defendant from withdrawing the sum of Rs. 3694-11-0 out of the decretal amount in suit No. 1000 of 1938 by execution or otherwise. Then, on 31 August 1939 Mc Nair J. made the following order: Without prejudice to the contention of the parties, application adjourned after the vacation. Interim Order discharged on the defendant's undertaking to deposit with his attorney Mr. M. G. Poddar Rs. 3700 (Rupees three thousand and seven hundred only); if money is realised in execution of the decree or otherwise on account of the decree obtained by the defendant in suit No. 1000 of 1938 to be held by Mr. M. G. Poddar subject to further Order on this application.

(2.) It is clear that the interim Order was discharged, upon the defendant undertaking to deposit with his attorney Mr. M. G. Poddar a sum of Rs. 3700 out of moneys to be realised by him in execution of the decree in suit No. 1000 of 1938, which sum was to be held by Mr. Poddar subject to further orders on the application. On 1 September 1939, a sum of Rs. 1500 was realised by the defendant in terms of a settlement arrived at between him and Prahladram, the defendant in suit No. 1000 of 1938, and this amount came into the hands of Mr. Poddar on that date. On 3 June 1941 the plaintiff's attorney Mr. S.K. Dutt wrote to the defendant's attorney Mr. Poddar to enquire if the defendant had realised any further sum in execution of his decree in suit No. 1000 of 1938. In reply to this letter Mr. Poddar took up the attitude that the plaintiff had abandoned his application inasmuch as he had never brought it to final hearing after the long vacation of 1939, and he claimed that he was entitled to appropriate the sum of Rs. 1800 realised in execution of the defendant's decree in suit No. 1000 of 1938 towards his costs. The plaintiff's suit was finally disposed of on 10 June 1942 by Gentle J. who granted the plaintiff a decree for Rupees 4272-12-6 with interest at 6 per cent. With regard to the sum of Rupees 1500 held by Mr. Poddar, Gentle J. made an Order in the following terms: No Order in respect of the monies in the hands of Mr. M. G. Poddar, attorney for the defendant, which he holds pursuant to the agreed Order of 31 August 1939, upon Mr. Poddar undertaking to continue to hold the monies in his hands for one month, and if within that time a substantive application is issued and served by the plaintiff in respect of that money to continue to hold it until further Order of the Court.

(3.) On 9 July 1942, the plaintiff took out the present summons on the defendant as also on his attorney Mr. Poddar for an Order for payment to the plaintiff of the aforesaid sum of Rs. 1500 and any other moneys that have been realised or may hereafter be realised in execution of the defendant's decree in suit No. 1000 of 1938. Along with his affidavit in support of the summons the plaintiff presented a tabular statement under Order 21, Rule 11 and there can be no doubt that he is now seeking to realise this sum of Rs. 1500 which is in the hands of the defendant's attorney by way of execution of the decree which he obtained from Gentle J. in his suit against the defendant. The application is resisted by the judgment-debtor Gajanand's attorney Mr. Poddar who claims a lien on these moneys for costs incurred by him in suit No. 1000 of 1938 (Gajanand Panday V/s. Prahladram).