1931 Present: Maartensz A.J.

AMBALAVANAR v. WANDURAGALA.

196-C. R. Kurunegala, 4,947.

Lien-Sum deposited for respondent's cost with his proctor-Dismissal of appeal-Costs paid direct to client-Right of proctor to retain deposit.

The appellant in an action deposited with the respondent's proctor a sum of money as security for the payment of respondent's costs of appeal.

When the appeal was dismissed, the appellant paid the costs direct to the respondent and sued the proctor for recovery of the money,-

Held, that the proctor had no lien on the money deposited with him for the recovery of the costs due to him from his client.

APPEAL from a judgment of the Commissioner of Requests, Kurunegala.

Hayley, K.C. (with him Peri Sundaram), for plaintiff, appellant.

H. V. Perera (with him Weerasuria), for defendant, respondent.

July 16, 1931. MAARTENSZ A.J.-

This appeal raises, so far as I am aware, an entirely new point with regard to a proctor's lien for his costs.

It arises on the following facts which are not in dispute.

The plaintiff, Mr. Ambalavanar, was the defendant-appellant in case No. 11,885 of the District Court of Kurunegala, and deposited with the defendant, Mr. Wanduragala, who was the proctor for the respondent, Marthelis, Rs. 200 as security for the respondent's costs of appeal.

The appeal was dismissed and Mr. Ambalavanar alleging that he had paid and settled the costs due to Marthelis, including the costs of appeal, brought this action to recover the sum of Rs. 200.

Mr. Wanduragala in his. answer pleaded (1) that the payment to the respondent was fraudulent and collusive, made with the object of depriving him of his costs, (2) that his costs were a first charge on the sum of Rs. 200 and that any settlement with Marthelis should have included the sum of Rs. 200 in his hands, (3) that Marthelis was a necessary party to the action.

The action was tried on the following issues: -

(1) Can the defendant deduct any sum of money out of the amount deposited with him by plaintiff as security for costs of appeal on account of costs due to him from his client, Marthelis Appu?

(2) Did defendant hold the said sum of Rs. 200 for and on behalf of his client?

(3) Has the defendant any lien over the sum of Rs. 200 or any portion of the said sum as it was not costs recovered by the defendant as proctor by his own exertion?

(4) Has the plaintiff paid to Marthelis Appu the costs in full due to Marthelis Appu (plaintiff in case No. 11,885?

On the fourth issue the learned Commissioner held in the affirmative as payment to the respondent had been certified in case No. 11,885.

I agree with him that the first and third issues practically raise the same question, that is, whether the defendant has a lien over the sum of Rs. 200 for the payment of the costs due to him from Marthelis. These issues were answered in the affirmative, so was the second issue. There can be no question that the defendant received the sum of Rs. 200 as agent of this client, Marthelis.

At the trial the defendant said that on accounts being gone into with Marthelis a sum of Rs. 124.75 was found to be due to him, the defendant, and that later he filed a bill which was taxed. The taxed bill was not produced nor was a statement filed by the defendant of the items which made up the sum of Rs 124.75.

The learned Commissioner, however, accepted the defendant's statement as to what was due to him and with the defendant's consent gave plaintiff judgment for the balance of Rs. 25.25. From this order the plaintiff appeals.

The learned Commissioner in the course of his judgment held that the payment to the respondent was a surreptitious and collusive act between the plaintiff and the respondent to deprive the defendant of the costs due to him from the respondent. It was contended that this finding cannot be supported as the question whether the payment was fraudulent and collusive did not arise