TYABJI, DAYABHAI AND CO Vs. JETHA DEVJI AND CO

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Mirza, dismissing, inter alia, a summons taken out on September 27, 1926, in two suits, Nos. 1405 of 1922 and 3104 of 1925. by Messrs. Tyabji Dayabhai & Co., attorneys for the plaintiff Hansraj Tejmal in the first suit. That summons asked for a declaration that the applicants had a lien on the sum of Rs. 3.572-9-8 then in the hands of the Sheriff of Bombay as received by him in Suit No. 3104 of 1925, and that by reason of that lien the sheriff do pay the said sum to the applicants in priority to the attaching craditors Messrs. Jetha Davji & Co., the plaintiffs in suit No. 3104 of 1925. Mr. Ju3tic Mirza, dismissed the summons; The applicants, the attorneys, appeal.

(2.) The case raises a point of importance not only to the attorneys of this High Court, but also to the public, as the question turns on what is the exact right of attorneys in respect of what is generally described as a particular lien on funds recovered in a suit by their exertions. I will call Suit No. 1405 of 1922 the first suit, No. 3104 of 1925 the second suit. The applicants were attorneys for the plaintiffs in the first suit, and on September 3, 1925, there was a preliminary judgment in their clients favour by which the defendants were ordered to pay the plaintiffs costs of suit to date ; and the defendants counter-claim was dismissed with costs. The plaintiffs bill of the costs in the first suit was not taxed till September 13, 1926, on which date the taxingmaster made his allocatur awarding Rs. 3,572-9-8 to the plaintiff as party and party costs. On September 15, 1926, the plaintiffs attorneys served that allocatur of the defendants.

(3.) I will now turn to the second suit, viz., No. 3104 of 1925. In that suit Jetha Davji & Co., whom I will call the attaching creditors, had obtained a decree on March 1, 1926, against Hansraj Tejmal, the plaintiffs in the first suit. Stopping there, it will be noticed that this decree was after the date of the preliminary decree in the first suit which presumably had been obtained partly by the exertions of the applicants. Then, on September 18, 1926, the attaching creditors asked in their own suit for execution, and they did so by asking that the Rs. 3,572,-9-8, payable for costs in the first suit, should be attached.