The Judgment of the Court was delivered by

Panckridge, J.:— This is an application by a firm of attorneys, who carry on business under the name and style of H.N Datta & Co., and another attorney, Mr. D.C Mitra. H.N Datta & Co. consist of three partners. When the warrant of attorney in this case was executed Mr. D.C Mitra was a member of the firm in addition to the three gentlemen who are now partners.

Mr. Mitra has ceased to be a member of the firm with effect from May 31, 1940. I notice that both the firm and the former partner, and for that matter the attorney representing the defendant in this application, observe the now prevalent custom of misdescribing themselves as solicitors,—a branch of the legal profession not recognized by the Charter or Rules of the Original Side, except in so far as under Chapter II of the Rules solicitors of the Supreme Courts of Judicature in England and Northern Ireland are entitled to be admitted as attorneys of this Court.

At the time when the notice of this application was served, the firm, as at present constituted, was not registered under ss. 58 and 59 of the Indian Partnership Act. It is argued that this is a proceeding to enforce a right arising from a contract within the meaning of s. 69(2) of that Act, and that, therefore, it cannot be instituted as long as the firm is unregistered.

I may say at once that, if I find this to be the only ground on which the application can be resisted, I am willing to preserve the status quo in order that the firm may obtain registration, if they have not already done so, and thereafter take out a fresh application.

The circumstances in which the present application is made are these.

In 1935, the defendant Jogendra Chandra Gooptu, whom I shall hereafter call “the client”, gave a warrant of attorney to the firm of H.N Datta & Co. to act for him in the present suit, which is a suit for the partition of his father's estate. The Official Receiver is now receiver of the estate, and a preliminary decree for partition was made on November 19, 1936.

There are difficulties in tracing some of the securities belonging to the estate, and the Commissioner has decided to make an interim partition of the admittedly available assets. The scheme was approved by the Court on May 15, 1940, and by the order then made the Official Receiver was directed to make payment out of the funds in his hands to the parties concerned in terms of the scheme. By an interim return the Commissioner has allotted the client a sum of Rs. 22,000 and has directed that it should be paid to him in cash or in Government Securities of the equivalent value.

The attorneys now apply for an order that a lien or charge be declared on that sum in the hands of the Official Receiver for their costs, charges, and expenses, in reference to the suit.

In India there are no legislative enactments dealing generally with the rights and liabilities of attorneys. It is, however, well settled that attorneys practising before the old Supreme Court, and on the Original Side of the present High Court, had and have, subject to the Rules, the rights enjoyed at Common Law by solicitors, attorneys, and proctors in England prior to the Judicature Act, 1873, under which the three classes of practitioners were abolished, and all became solicitors of the Supreme Court of Judicature. One of the many cases in which this has been recognized is Premsukhdas Singhania v. N.C Bural & Pyne. I think it has never been disputed that among these rights is the right of an attorney to ask this Court to direct that personal property, recovered under a judgment obtained by his exertions, stand security for the costs of recovery.

This so called “lien” has been extended by statute in England to real estate. Its present statutory recognition is to be found in s. 69 of the Solicitors' Act, 1932.

That section makes it clear that the power to make an order enforcing the statutory lien is discretionary, and I take it the same is true of the common law lien.

It would seem that an attorney's position is even stronger with regard to a fund in Court. I take the following passages from Cordery's “Law relating to Solicitors”, 4th Ed., p. 492:—

When there is a fund in Court, the solicitor's lien independently of the statute, and without any declaration thereunder, is an absolute charge thereon and has priority over any other assignment or charging order obtained with or without actual notice.

In my opinion, the circumstances of this case are such that the attorneys have prima facie a right to an order substantially in the form of the order made by Ameer Ali J. in Premsukhdas Singhania v. N.C Bural & Pyne (supra), and set out at p. 1009 of the report of the unsuccessful appeal. One argument advanced by the client is that the form of the order of May 15, which directed payment to the parties, either overrides the lien, or alternatively shows that the attorneys have waived it.

I do not accept this. In my experience, orders for payment out of a fund in Court never formally reserve the attorney's lien, and I agree with Mr. B.C Ghose that it would be improper for an attorney to assert his lien against the client on whose behalf he is making an application.

The real opposition to the application is based on the change in the constitution of the firm of H.N Datta & Co. as from May 31 last. It is stated in Cordery, 4th Ed., p. 133 that the dissolution of a firm of solicitors amounts to a discharge of the solicitors by themselves.

The leading case of Griffiths v. Griffiths shows that this is so; but it is perhaps not without significance that there the client only prayed for an order for delivery of the cause papers to the new solicitor upon the latter's undertaking to hold them without prejudice to any right of lien to which the old solicitors or either of them might be entitled, and to return the same undefaced to the old solicitors within fourteen days after the hearing of the cause, and that the order for delivery was made upon those terms. It would appear from Griffiths v. Griffiths that on dissolution of a solicitors' firm its members although they discharge themselves do not necessarily lose their lien on the cause papers for their costs up to the date of discharge. However, even on the assumption that such lien is lost, it does not logically follow that in such circumstances they lose their lien over a fund in Court recovered by their exertions before dissolution.

Where the solicitors discharge themselves in circumstances which amount to misconduct the position may be different, but nothing which has happened in this case has, in my judgment, deprived the former gentlemen, who were acting as the client's attorneys up to June 1, 1940 of their rights, to have their costs taxed up to that date and secured upon the fund in Court. I understand that the client will be put to considerable inconvenience if payment is held up pending taxation. The attorneys untaxed costs amount to Rs. 6,455-10. It may be assumed that there will be some reduction on taxation. I think the proper order is one for taxation up to May 31, 1940, and a declaration of charge on the sum of Rs. 22,000 now in the hands of the Official Receiver for the applicants taxed costs. The client, however, will be permitted to withdraw Rs. 17,000 from the Official Receiver on his undertaking to pay any balance ultimately found payable by him over and above the sum of Rs. 5,000 remaining with the Official Receiver.

May 6, 1941.

The part of the judgment which I have just read was written by me after I had heard the application on August 13, 1940. After that date I fell ill and was unable to deal further with the matter. I realised that I had not fully considered the point with regard to the objection taken to the maintainability of the application under s. 69(2) of the Partnership Act.

I have now heard Mr. Ghose upon the point and I am in possession of more accurate information than was at my disposal when writing the earlier portion of the judgment. The dates are as follows. The firm of H.N Datta & Co. was duly registered shortly after the passing of the Partnership Act and the registration showed as partners the four gentlemen who were acting as the client's attorneys up to June 1, 1940. On May 31, 1940, Mr. D.C Mitra retired from the firm. Information of this was given to the Registrar on June 18, 1940. The summons was taken out on July 24, 1940, the returnable date being July 26, 1940. On July 27, 1940, an application was made to the Registrar to register the firm with the present partners, and the firm was so registered on July 29, 1940; This application was heard on August 13, 1940.

Mr. Ghose has drawn my attention to a case which has been reported since I first dealt with the application. That case is Pratapchand Ramchand and Company v. Jahangirji Bomanji Chinoy. The headnote of that case is as follows:—

On November 13, 1933, the plaintiff firm was registered under the Indian Partnership Act. The firm in respect of certain of its transactions with the defendant filed the suit in October 26, 1939, and on January 24, 1940, notified the Registrar of firms of the change in the constitution of the firm by reason of the death of one of the partners on May 11, 1937. On issue raised whether the plaintiffs were a firtn duly registered under the Indian Partnership Act, 1932

Held that, notwithstanding the dissolution of a partnership by death of a partner, the firm so far as registration is concerned is to be deemed to be still registered.

That so long as the partners suing were shown in the register as partners, the firm, notwithstanding the death of one of the original partners, remained a registered firm and could sue.

I have been taken through the relevant portions of Blackwell, J.'s judgment more than once and I fully agree with the view he expressed.

As far as the dates are concerned the facts of that case do not seem to me to be distinguishable, nor do I think that the situation is affected by the fact that the constitution of the firm was modified in that case by the death, and in this case by the retirement, of one of the originally registered partners. The only point on which the cases can be distinguished is the form of the entry in the register of firms. Though I have not before me the actual document in which information was furnished to the Registrar of Mr. D.C Mitra's retirement, the firm is shown in an entry dated June 20, 1940, as having given notice of dissolution, and in the remarks column the word “dissolved” appears. Against the words “How dissolved?” There is this statement: “As one of the partners Mr. D.C Mitra retired.”

As Blackwell, J.'s judgment recognises that the retirement of a partner does occasion the dissolution of a firm, generally speaking. But, having regard to the whole entry, it appears to me to be really from the point of view of registration the recording of the retirement of a member of a registered firm, and in my opinion the form of entry in the register of firms does not take the case outside the ambit of the Bombay authority.

I see no reason to modify the order set out in the earlier part of the judgment: the applicants may have the costs of this application. Certified for counsel.

I find that the client is reluctant to give the undertaking as to payment of any balance. I, therefore, modify the order I already made and in lieu thereof I give him liberty to withdraw the sum in Court leaving a balance of Rs. 6,500 subject to taxation.

Application allowed.

Attorney for applicants: H.N Datta & Co.

Attorney for respondent: J.C Basu.

S.M