Appu Sinno Et Al. V. De Silva

Present: Lascelles C.J. and Middlelon J.

APPU SINNO et al. v. DE SILVA.

164-D. C. Galle, 10,353.

Proctor's, lien for costs on money deposited in Court for the use of his client-Claim for set-off by party depositing money-Civil Procedure Code, ss. 75 and 212-Taxation of bill of costs.

Defendant deposited in Court a sum of Rs. 200 for the use of the plaintiffs. Judgment was entered for plaintiffs for that sum, but plaintiffs were ordered to pay defendant's costs.

Held, that plaintiffs' proctor had a lien on the sum deposited for his costs.

MIDDLETON J.-Here the defendant seeks to set off his order for costs against the sum decreed by the Court to be paid by him to the plaintiffs; and I think section 212 preserves the plaintiffs proctor's lien on that sum.

As regards the proctor's costs not having been taxed at the time the motion was made asserting the right of lien, I cannot see how this would prevent the right of lien arising, which apparently extends no further than for the amount of the costs taxed.

THE facts are set out in the judgment.

Bawa, for the plaintiffs, appellants.-The money was deposited in Court to plaintiffs' credit. The ninth appellant, who is the proctor

1 L. R. 3 Tr. 299.

for the plaintiffs, has a lien over that sum for costs due to him from the plaintiffs. See Civil Procedure Code, sections 75 and 212, and Perera v. Perera.1

A solicitor who succeeds in an action has a lien over the amount recovered; the lien may be compared to salvage over property recovered at sea. See Charlton v. Charlton. 2

[Their Lordships stopped counsel and called upon the respondent.]

A. St. V. Jayewardene, for the defendant, respondent.-The lien that is now claimed does not exist under the Roman-Dutch law. See Thomson's Institutes, vol. I., p. 556; Pereira's Laws of Ceylon, vol. II., p. 486; 2 Maas. 254.

Sections 75 and 212 do not apply to a case of this kind. They contemplate a decree for costs in favour of the client of the proctor claiming the lien. In the present case there is no such decree, Perera v. Perera1 also does not apply to the facts of this case.

The ninth appellant must bring a separate action to recover his costs, and the procedure laid down in section 215 of the Civil Procedure Code must be followed.

The bill of costs was not taxed at the time when the motion was made to have the lien made a matter of record; no lien can exist with respect to an unascertained sum.

Bawa, in reply.-It will be unreasonable to hold that because the plaintiffs have been denied their costs that their proctor has no lien over the money recovered by him.

Sections 75 and 212 do not create the lien; they only recognize the lien. [Lascelles, C.J.-If the money was in the proctor's hands there may be a lien, but if the money was deposited in Court, would the proctor have a lien?] The money was won for the plaintiffs by the proctor. The principle of salvage applies to a proctor who has succeeded in an action.

Sections 75 and 212 have not been carefully worded. See the observations of Hutchinson C.J. in Perera v. Perera.1

The words " under the decree " in the sections have no special meaning, and may be disregarded.

Section 215 only indicates the manner of proceeding to recover costs; it does not affect the lien.

The Roman-Dutch law as to a proctor's lien was not adopted in Ceylon. It is the English law that applies.

The fact that the bill of costs was not taxed at the time when the motion was made does not matter. Counsel cited Be Bay v. Griffin;3 Greer v. Young;4 In re Suffield;5 Pereira's Laws of Ceylon, vol. II.; p. 417.

Cur. adv. vult.

1 (1907) 11 N. L. R. 1.                                                               3 (1875) 2 L. R. Ch. 291.

2 (1883) 52 L. J. Ch. 971.                                           4 24 Ch. D. 587.

                                        5 (1888) 20 Q. B. D. 693.

November 29, 1911. Lascelles C.J.-

This appeal raises the questio

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