L.H. Jenkins, J.

1. This suit was commenced in 1887, the attorneys for theplaintiff being at that time Messrs. Gregory and Jones. Later on there was achange to Babu Mohini Mohun Chatterji, and on the occasion of that change he paida sum of Rs. 2,192-7-6 to the former attorneys at the plaintiffs request. Onthe 9th September 1895 a decree was passed, and by it a sum of Rs. 17,000became payable from the defendant to the plaintiff. Each party was to bear hisown costs of the suit. The costs up to and including the decree have been taxedas between attorney and client, and Rs. 2,017-13-6 have been allowed on thattaxation. Subsequent costs to the amount of Rs. 613 have also been incurred.From time to time payments on account have been made, which leave Rs. 914-4-9still due from the plaintiff to Babu Mohini Mohun Chatterji on account of hiscosts, besides subsequent costs which are still untaxed.

2. In execution of the decree in the suit certain Immovableproperty was attached and advertised to be sold on the 10th March of this year.

3. In the meantime, however, the defendant had settled withthe plaintiff personally without the intervention of the attorneys on eitherside, and an application was made on the 10th March for stay of the sale. Thatapplication was granted for the purpose of keeping matters solely in statu quo,and not so as to prejudice the rights which otherwise existed.

3. The compromise to which I have referred made no provisionfor payment of Babu Mohini Mohun Chatterjis costs, and he has accordingly madethis present application that the plaintiff and the defendant, or either ofthem, be ordered to pay to him Rs. 914-4-9, being the balance of his costs, andalso his. costs subsequent to the decree to be taxed, and in default that he beat liberty to proceed with the sale of the property attached or for such otherorder as to the Court may seem meet.

4. This claim on the part of the applicant is based on theright commonly known as an attorneys lien on the fund recovered in suit.Whether that is the most appropriate mode of description it is unnecessary todiscuss, for the nature of the right is free from doubt.

5. It is a claim on the part of the attorney to have securedto him his due reward out of the fruit of his labour, and for that purpose tocall in aid the equitable interference of the Court. But while the right isclear, it must be conceded that the litigants themselves are really masters ofthe suit, and that it is within their power to compromise it without theacquiescence or even the knowledge of their attorneys. The exercise of thisright, however, is subject to important qualifications. In the first place thecompromise must have been made with the honest intention of ending thelitigation, and not with any design to deprive the attorney of his costs; and,secondly, no payment can be made under the compromise to the prejudice of theattorneys claim after notice of it. has been given to the person by whom thepayment is made.

6. These principles appear to pie to be the clear result .ofthe authorities in England; and founded, as they are, on justice, equity andgood conscience, I see no reason why they should not apply in this country. Nowthe applicant on this occasion claims that both conditions to which I havereferred exist, though it is clear it would suffice for his purpose, if he canestablish either of them. The facts on which he relies as establishing hisposition by virtue of notice given are set forth in that part of his affidavitwhich commences with paragraph 6. He says: "I personally informed thedefendant for whom I acted as attorney in a suit in this Honourable Court,being suit No. 770 of 1894, wherein Gooroo Prosunno Ghose was the plaintiff andthe defendant herein was the defendant, of my said lien for costs, and at thetime when I informed the defendant as aforesaid, Babu Prosunno Chunder Roy, aVakil of this Honourable Court, who was instructing me on the defendantsbehalf in the said suit, No. 770 of 1894, was present."

8. "That I have personally and repeatedly informed BabuPeari Mohun Chatterji, Dewan or Manager of the defendants affairs, of my saidlien."

9. The facts set forth in the paragraphs which I have justread are uncontradicted, and it is admitted on the part of the defendant thathe had notice of the claim for a lien, so that the case would appear to comewithin the second of the qualifications I have mentioned.

10. It has, however, been urged by Mr. Woodroffe, who hasargued the case very fully and ably for the defendant, that it is not open tome to make the order asked for, and he has urged several objections. Theprincipal objection is one which goes to the root of the whole matter, and Iwill, therefore, deal with it first. He contends that the Court has no jurisdictionbrevi manu to make such an order as is asked for, and in support of theobjection he refers to the absence of any practice justifying such a procedureas is sought to be used on this occasion. In addition he has referred to twocases: one the case of Domun v. Emaum Ally (1881) I.L.R. 7 Cal 401 and theother the case of Mahommed Zohuruddem v. Mahommed Noorooddeen (1893) I.L.R. 21Cal. 85.

11. The first of the two cases seems to me to have noapplication to the matter now under consideration. It simply refers to thequestion whether, on summary application, an order could be made directing aparty to pay his attorney the costs of suit when taxed. It was held that suchan order could not be made. That is a wholly different case from the present.

12. In the same way the case of Mahommed Zohuruddeen v.Mahommed Noorooddeen (1893) I.L.R. 21 Cal. 85 appears to me to throw no lighton the point. The facts are shortly these: An attorney had by way of securinghis costs taken a deposit of title deeds, and made a summary application in asuit to which he was no party to have that equitable lien enforced. It was heldhe should, if he desired to enforce his equitable lien, commence a suit of hisown. I fail to see how a decision on those facts can in any way negative theapplicants right to proceed in the manner he has selected.

13. The present application appears to me to be based on theprinciple that the Court has general jurisdiction over its suitors, and I seeno reason why that jurisdiction should not be as fully vested in a Court hereas it is in the English Courts. I therefore think it is open to the Court todeal with this particular question on a summary application framed as thepresent is.

14. The other objection raised by Mr. Woodroffe were not ofso far-reaching a character. He referred to Price v. Crouch (1891) 60 L. J.Q.B.767 as authority for the proposition that notice of lien must be of a moredefinite character than the notice given in this case. I find nothing in thedecision given in that case which calls for the conclusion that the noticegiven by the applicant in the present case was insufficient, for there it wassimply held as a matter of fact that the notice was insufficient, because itwas not in any sense a notice of lien, but merely of an expectation thatprovision would be made for costs.

15. In the present case the attorney has given, in theclearest terms that could have been used, notice that he did claim a lien forhis costs of the suit.

16. Another point urged by Mr. Woodroffe was this: Hecontended that inasmuch as part of the aggregate claim consists of costs paidto a prior attorney, no lien to that extent can be claimed, and in support ofthat proposition he referred to the case of Christian v. Field (1842) 2 Har177. That case is not an authority for the broad proposition in support ofwhich it was cited.

17. Be this however as it may, the state of facts on whichthe argument is based has no existence here, for I do not find that the unpaidbalance of costs is in any way made up of the amount paid by Babu Mohini MohunChatterji to Messrs. Gregory and Jones. That amount was the earliest item inthe account, and if Mr. Woodroffes argument is correct, it is unsecured, and Icertainly should presume that the payments already received were, under thecircumstances, attributed in the first place to the discharge of that amount.

18. I have now dealt with all the points raised except thatas to the proper form of the order. I hold in this case that sufficient noticeof lien was given by the attorney, Babu Mohini Mohun Chatterji, to thedefendant before payment was made by him under the compromise, and I,therefore, come to the conclusion that Babu Mohini Mohun Chatterjis presentapplication is rightly conceived. I may add, I think, it is very desirable inthis country, both in the interests of attorneys and in the interests oflitigants themselves that the Court should possess a power to interferesummarily, as has been done in this case.

19. I direct payment of the amount of costs, which have beentaxed, and subsequent costs when they have been taxed, by the plaintiff and thedefendant, including the costs of this application.

20. [Mr. Sinha asks that the application be certified forCounsel. The Court certifies for Counsel.]

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Khetter Kristo Mittevs. Kally Prosunno Ghose(04.04.1898 - CALHC)