SADANAND PANDURG MHATRE Vs. PARASHRAM PANDURANG MHATRE

JUDGEMENT

(1.) [His Lordship after setting out the facts of the case proceeded:] The summons in the case asked for a declaration that the right, title and interest of defendants Nos. 1-4 in the Dadar property be charged with the payment of the costs of the applicants. Now although the matter was argued twice it did not strike any one as to what the summons was for. The summons does not ask for a declaration of priority as regards the applicants costs over the claim of Navalkar under his mortgage. Yet in effect the argument from the commencement has been confined to such a claim, and in effect the contest is between the applicants and the mortgagee as to priority of charge. It is true that in the affidavit in support of the applicants summons they claim priority for their costs over the mortgagee's claim, but they did not do so in the summons itself. Having regard to the arguments before me, I am willing to treat the summons as including the claim for priority but direct that the summons may be amended accordingly.

(2.) Mr. Desai for the mortgagee contends that there is no case made out by the applicants for any relief, and, secondly, that in any case the applicants are not entitled to have any lien on immoveable property. Mr. Vachba supports the contention. Mr. Mulla contends that a solicitor's lien can attach to immoveable property if the other conditions required for establishment of the right of lien exist, which he says is the case here. The first question, therefore, is whether the lien of a solicitor can be enforced against the immoveable property of his client.

(3.) Now the law as to solicitor's lien has been exhaustively discussed and laid down in a recent decision of the Appeal Court in Tyabji Dayabhai & Co. V/s. Jetha Devji & Co. . The learned Chief Justice at p. 1205 of the report para 12 of his judgment, cites a passage from Halsbury, Vol. XXVI, para, 1334, p. 814, with approval as an accurate statement of the English law on the subject. This is what Halsbnry states :- A solicitor is entitled to three kinds of lien to protect his right to recover his costs from his client, namely :-(I) a. passive or retaining lien; (2) a common law lien on property recovered or preserved by his efforts; (3) a statutory lien enforceable by a charging order.