PREMSUKHDAS SINGHYNIA Vs. NCBURAL AND PYNE

JUDGEMENT

(1.) This is an appeal from a judgment of Ameer, Ali, J., dated 16 August 1932 and the order which the learned Judge made, as part of that judgment, is in these terms: The order I propose to make is as follows: (i) An order for payment of the costs of the applicant as are taxed against both respondents to this application. (ii) an order charging the fund in the hands of P.N. Sen & Co., with payment of such costs in support of the applicant's lien. (iii) an order against both respondents restraining them from withdrawing the said fund in excess of the amount due to the applicant without payment of such amount. (iv) an order restraining both defendants from satisfying the decree in this suit in any manner which will deprive the applicant for such costs. (v) the respondents to pay the costs of this application.

(2.) (After reciting the facts, His Lordship proceeded). Put compendiously therefore the claim which Messrs. Bural & Pyne were making was that the settlement arrived at between Singhania and Didwania, was to all intents and purposes, a device intended to deprive the solicitors of the costs which they earned in obtaining the decree in suit No. 568 of 1926. The learned Judge, when the matter came before him, dealt with the law at considerable length. After reviewing a large number of authorities he came to this conclusion: I regard the arrangement, in this case, substantially as a set off of decrees, under Order 21, Rule 18, Civil P.C. As such, I regard it as an arrangement of a different character, and therefore to be regulated by rules different to those applicable to a bona fide settlement of disputed claims... Even so regarded however 1 consider myself bound by the ruling of Chaudhuri,. J., in Bhupendra Nath Bhose V/s. E.D. Sassoon & Co; 1917 Cal 241 to the effect that normally set off of two decrees will be allowed notwithstanding the solicitor's lien. The learned Judge however qualifies his ruling; by admitting an exception whore "there are equities" in favour of the solicitor. In a clear case under Order 21, Rule 18 it is difficult to see what equities would or could arise. I therefore take the meaning of the learned Judge to be this: that the Court will interfere to prevent a set-off upon grounds similar to those upon which it interferes in the case of a compromise of disputed clauses, i.e., collusion, etc. In other words, the learned Judge treats set-off of decrees and compromise of claims upon the same footing. I have therefore still to consider the arrangement in the present case, as if it wore a compromise. A compromise (if so, it can be called) of this nature is in any event very different in degree to the compromise of doubtful claims. In the former case, the burden of showing that the arrangement was intended to defeat the solicitor's claim is obviously far more easily discharged. Indeed, in some cases, it might be necessary for the parties seeking to sot off to explain the reason for the course taken.

(3.) Then comes the final conclusion at which Ameer Ali, J., arrived, which is as follows: I have carefully considered the circumstances of this case and I have on the facts no hesitation in coming to the conclusion that the parties intended so to arrange matters as to defeat the solicitor's lien. I am further of opinion, notwithstanding observations in some of the authorities above cited, that I am entitled to come to this conclusion without referring the applicants to a suit.