HARNANDROY FOOLCHAND Vs. GOOTIRAM BHUTTAR

JUDGEMENT

(1.) In this case I am prepared to make the order which is asked for by the attorney against the plaintiff. An action was brought by the plaintiff against the defendant. The defendant happened to be the receiver appointed by the Court of the assets of a certain firm. The plaint in the action shows that in the course of the work the defendant did as receiver for that firm he executed certain promissory notes on which the plaintiff became in the end the endorsee, and the action was brought really against him as the maker of the note by a person to whom it had been endorsed by the original payee. That being so there can be no doubt that the receiver was personally liable and that the action was brought against him personally. Whatever the rights may be between the defendant in that action and the firm over whose assets he had been appointed receiver, that was a matter which had nothing to do with the case, and in no way bound the plaintiff. It is like the simple case of an executor who, in order to carry out his duties, orders certain goods--it may even be for the funeral of his testator. The action that has to be brought against him by the supplier of those goods would be an action against him personally in respect of his order, and if it were brought in the form of an action against the executor as representing the testator s estate, it would be an action which was wrong in form. In the old days you could not have coupled such a claim with a count for a debt which had been incurred by the testator in his lifetime.

(2.) Now, in the course of certain interlocutory proceedings, the defendant was successful and he obtained orders against the plaintiff for certain costs which have been taxed at Rs. 1,030. The defendant died, no steps were taken to reconstitute, the action, and the action was dismissed, no order being made as to costs. In these circumstances the attorney for the defendant comes before me and asks that I make an order to pay him Rs. 1,030 against the person who was plaintiff in the action. Now, the lien of an attorney for his costs upon property recovered or preserved is not only one of the oldest doctrines of law, but one which is based on very manifest justice, and the objection to the order that I am asked to make is that, although the law which prevails here recognises the solicitor s lien I have no jurisdiction to make such an order as this because there is nothing in the Code or in the Rules that enables me to make a direct order for payment to the attorney. What exactly is the correct method of enforcing a solicitor s lien I do not know on this hypothesis, but I presume it would be by starting another suit and going into the whole matter from the beginning with a plaint and written statement. In my view that is entirely unnecessary. I find that it has been held by the late Chief Justice of this Court when sitting as a Puisne Judge at first instance on the Civil Side, Khetter v. Kally (1898) 2 C.W.N. 508, 511, that there is authority to make an order for payment direct in this class of cases. If I may be allowed to say so, I think that the short and summary way in which that point was deal with was the correct way to deal with it, to regard it as a matter of settled law, that when the Court has jurisdiction in an action it has jurisdiction not only as between the parties to that action, but also as regards those officers of the Court who act for the parties. If, for example, one is minded to give parties their costs out of a fund, and the fund is a fund that is in Court, it is an old Chancery practice to order payment to the solicitor direct, and not to the parties. Why? Because the solicitor is recognised by the Court; the matters between the solicitor and his client, so far as they concern that action, are just as much under the hand of the Court as is the contention between the party and party, and the improvement as to procedure that was introduced into England by the Solicitors Act is an improvement as to procedure only. Thus it may be that it is a better remedy to a solicitor to apply against his own client in the action for an injunction to restrain his client receiving the proceeds of the judgment, and thus defeating the solicitor. That remedy in the action it is still open to the Court to give. As between the solicitor and his client, the action is in the hand of the Court, and when I find that the late Chief Justice did not feel himself hampered by any technicality, I am certainly not going to create a technicality that seems to me to be contrary to principle.

(3.) Now, the only other point which has been taken by Mr. Buckland is this. He says that this summary remedy is not to be regarded as a remedy ex debilo justifies: it is only to be resorted to in a proper case, and prima facie it is not a proper case unless it is clearly shown that the attorney is unable to recover his costs from his client.