JUDGMENT Ameer Ali, Ag. C.J. 1. The assistance which we have received from counsel on both sides and especially the able manner in which Mr. Sankar Banerjee for the respondents answered the difficult points put to him by my colleague and myself merits a far more carefully prepared judgment than that which I am about to give. 2. The order appealed from was made on 15th November 1943, upon an application dated 7th July 1938. The reasons for this delay have been referred to by the learned Judge in his judgment, but upon them I shall have some further comment to make. The order was for payment to the applicant Mr. P.C. Basu, the attorney for the Mahata parties to certain litigation, of Rs. 7085 odd annas and pies by the other parties to the litigation, the Maloos, respectively defendants and plaintiffs. The sum of Rs. 7085 is described in the order as "the balance of his taxed costs payable under the allocatur dated 15th June 1938." The problem involved in this matter and in this appeal was discussed at the hearing in terms of a formula which may at once be recorded: A. Mahatas, debtors and mortgagors, B. Maloos, creditors and mortgagees, A-1. The attorney for A, the mortgagors, B-1. The attorney for the mortgagees. In the course of proceedings upon the mortgage and the debt the mortgagors, A, (I shall now drop the description) obtained incidentally a decree against B for costs amounting to Rs. 10,000. This was in 1937. Shortly after, in March 1937, B obtained a preliminary mortgage decree for an aggregate sum of over rupees two lakhs, and in 1942 a personal decree for something under Rs. 1,60,000, a proportion, therefore, roughly of 1 anna to 16 annas, a convenient fraction. 3. A-1 had been put in funds by A to the extent of Rs. 4,000. A's taxed costs in the proceedings in which he succeeded amounted on the allocatur, set out at page 5 of the paper book, to Rs. 9,000 odd. The precise figure matters not. A-1 failing to obtain the balance of his costs from A sought by this application to recover them from B to the extent of Rs. 7,000 odd, the amount which he has been awarded by the order under appeal. 4. From this data the whole problem may be put in the form of a simple diagram. A-1 failing to obtain the balance of his costs from A sought by this application to recover them from B to the extent of Rs. 7,000 odd, the amount which he has been awarded by the order under appeal. 4. From this data the whole problem may be put in the form of a simple diagram. In order to appreciate the argument on both sides it is necessary to set out the facts in somewhat greater detail. On 13th November 1933, B filed Suit No. 2198 in the High Court on five mortgages executed by A one of which included a small strip of property in Calcutta. On 14th November 1935, a decree was made in B's favour on the original side of this Court on the fifth mortgage only, which included the Calcutta property. B being thus relegated to a suit upon the four mortgages in Khulna, filed such suit in 1936, and it proceeded with the inevitable complications introduced by claims of female relatives and appeals to the Appellate Side. Pending proceedings of this nature in the Khulna Court on the four mortgages, the appeal from the decree on the filth mortgage was heard and decided on 10th February 1937, in favour of A. B, therefore, lost the first round of this juridical contest at a cost of some ten or eleven thousand rupees, which from this date, therefore, or rather when ascertained by taxation, B owed A. It is common ground, although the document does not appear, that immediately upon the decision of the Court in appeal the attorney A-1 gave notice of his lien in regard to the decree for costs to B. Thereafter, as already stated, on 15th March 1937 the preliminary decree was passed in favour of B in the Khulna Court for an amount aggregating to Rs. 2,00,000 odd. On 15th June 1938 A-1 obtained his allocatur. On 16th June 1938, A-1 "served" the allocatur on B-1 with a covering letter demanding payment, the concluding paragraph of which reads as follows: I have only to add that practically the whole of my costs have not been paid by my clients and the whole is payable to me and I have got a lien over the taxed costs for my unpaid dues. 5. B-1 on behalf of B replied disputing liability and mentioning the decree of the Khulna Court. 5. B-1 on behalf of B replied disputing liability and mentioning the decree of the Khulna Court. A-1's reply of 18th June 1938, deserves attention as expressing an opinion or outlook which will call for an analysis: I have no concern with the claim your client may have against my clients....and certainly your client's right to set off cannot have precedence over my lien which is paramount under the law. I am entitled to a lien on the fruits of my labour, namely, the amount of the costs that has been awarded against your client. 6. On 27th June 1938, A-1 informed A of B's claim to set off (p. 13 of the paper book), and on 4th July 1938, A replied to A.1: We are not in a position to pay any money.....please realise the monies from the plaintiff and oblige. (Page 14 of the paper book.) 7. Observe, at this point, two things, which the attorney A-1 did not do: (1) He did not proceed against his client under the summary procedure provided by our rules, Ch. 36, R. 48, or otherwise. (2) He did not on behalf of his client take out execution against B, the usual or normal course. To this fact I shall presently refer. 8. In these circumstances on 7th July 1938, the summons was taken out asking for a direct order for payment by B to A-1. The affidavit in support indicates the basis of the application as it then existed, namely inability to recover "my costs from my clients." Without the order "I shall be deprived of the fruits of my labour." The allocatur was "duly served" on the plaintiffs' attorney. The affidavit in opposition of 11th July 1938, refers to the preliminary decree in Khulna and disputes the case of inability of A to pay A-1. The affidavit in reply of 18th July 1938, sets out the enquiry and answer by his own client A, already mentioned, as establishing inability. 9. There the matter rested, perhaps uneasily, but still rested, for some four years. During this period the appeals from the Khulna decrees were disposed of, and on 30th July 1941, the Khulna properties were sold. On 21st December 1942, was the personal decree, already mentioned, for Rs. 9. There the matter rested, perhaps uneasily, but still rested, for some four years. During this period the appeals from the Khulna decrees were disposed of, and on 30th July 1941, the Khulna properties were sold. On 21st December 1942, was the personal decree, already mentioned, for Rs. 1,60,000 or thereabouts in favour of B. To adopt the phraseology of the correspondence and affidavits to this incident, B's fruits at this stage were crystallized just as A'S fruits had crystallized by the allocature in 1938. 10. In 1943, B and A by proceedings, which are not upon the record and the precise nature of which is, I think, immaterial, in the Khulna Court recorded an adjustment or set-off against the decree of Rs. 1,60,000 of the amount of the Calcutta decree of Rs. 11,000 odd. The order was actually made on 28th June. That this was done by arrangement, the learned Judge has found, and we in no way doubt it. Of this fact A-1 was informed by registered letter of 31st July 1943 and it was also confirmed by statements in the affidavit on behalf of B filed on 18th August 1943, in these proceedings. This attracted the final move in this contest in the form of an affidavit by the applicant filed on 16th August 1943, describing the order of 28th June 1943, as "collusion and conspiracy," thus introducing an entirely new element. The application was brought out on 15th November 1943. 11. The difference between the two positions, that of 1938 and that of 1943, is as follows: 12. After June 1943, B has a legal claim or right to Rs. 1,60,000 which he had not in 1938. As against that, A-1 has an allegation of fraud, which he had not in 1938. This produced the dilemma with which counsel for the respondents was faced, and which he dealt with so much agility. I proceed further to explain: 13. (a) 1938. The first question: Can the applicant go back to it at all, i.e., seeking as he does equitable relief? is he not bound to accept the position with all circumstances, favourable or unfavourable, as it exists on the date when the Court is asked to grant special relief? But supposing he be so permitted (to return to 1938) he loses his fraud. He cannot keep his fraud and exclude the Khulna decree. is he not bound to accept the position with all circumstances, favourable or unfavourable, as it exists on the date when the Court is asked to grant special relief? But supposing he be so permitted (to return to 1938) he loses his fraud. He cannot keep his fraud and exclude the Khulna decree. Incidentally, it is, in my opinion, by no means certain that in 1938 the Court would have made an order in his favour, a matter further to be discussed. 14. (b) 1943. Fraud, but on the other hand Khulna decree. Problem-can there be fraud if there be a right? A vulgar, but not perfect, analogy, is there wrong in entering your own house by opening the kitchen window? Can the Khulna order be of more effect or more noxious than a nullity? I assume that it was procured by agreement, and without notice which should have been given. 15. (c) By reason, as I think, of these difficulties Mr. Sankar Banerjee was ultimately driven to propound or to support the theory of the attorney's "paramountcy" and "fruits," which for reasons, which I shall now attempt to explain, I consider to be based upon misconception. In doing so I shall deal with matters which are in some sense elementary. Notwithstanding, there still remains much misconception as to the nature of costs, of attorneys' lien, and of the equitable relief which attorneys are entitled to seek from the Court. 16. First, as to costs; what are they? It is clear that the attorneys, and the attorney in this case, regard them as "fruits" (p. 4 of the paper book). Such metaphors are useful in so far as they are carefully applied, otherwise misleading. The attorney is not a horticultural creditor. He is not a fruit grower but a fruit picker. He is a paid employee, no doubt skilled and respected, to climb the tree of litigation and to recover the fruit for his client's consumption. It is to be observed that throughout the correspondence and the affidavit the Attorney refers to "my fruits of the litigation." It is not his fruit but client's fruit. For this task he is remunerated on a scale fixed by the Court, "taxation." For the payment of these wages (for wages they are) his client and not another is liable. It is to be observed that throughout the correspondence and the affidavit the Attorney refers to "my fruits of the litigation." It is not his fruit but client's fruit. For this task he is remunerated on a scale fixed by the Court, "taxation." For the payment of these wages (for wages they are) his client and not another is liable. In theory, before the conclusion of the litigation those wages have been paid, in practice rarely; in this case to the extent of Rs. 4000 out of Rs. 11000. The attorney, if not paid, is after taxation entitled to recover from his client upon some summary procedure. As between party and party, i.e., A and B, A is allowed to recover from B such portion of the party and party costs as the Court in its discretion allows. When allowed by the decree, A-1 is normally employed to recover them, but they are not A-1's fruit. When recovered and in his hands, he has a lien upon them for the balance of wages due to him. It is, therefore, in practice a security. 17. It is further essential to bear in mind the nature of costs and in this connection I recently took the liberty of advising attorneys to beware of the dog. Gundry v. Sainsbury, (1910) 1 K.B. 99 on appeal (1910) 1 K.B. 615 : (79 L.J.K.B. 713). 18. There is no indisputable right even as between A and B to costs as such. They are in theory such indemnity for the actual expenses of litigation as the Court allows. They are an indemnity to the employer not to the employee. 19. Secondly, what is an attorney's lien? There is to my mind nothing dubious about the phrase. In a case decided by me some years ago the attorneys contended that a lien would entitle them to take and use the money of their clients. This contention Mr. I.P. Mukherjee with intelligent humour described as a "devouring lien." The lien contended for, in this appeal, might be described similarly as a "hovering lien." There is no such thing. A lien is a right to hang on or tie up something belonging to another person which you have got in your own possession. Nothing more. A lien, therefore, is not a charge; and it is a misconception, under which the attorney in this case labours, so to conceive it. A lien is a right to hang on or tie up something belonging to another person which you have got in your own possession. Nothing more. A lien, therefore, is not a charge; and it is a misconception, under which the attorney in this case labours, so to conceive it. That is what I have in mind in using the phrase "hovering lien". There is no floating charge. 20. On the other hand, by reason of the limited nature of this advantage of possessory security the Court does assist the attorney either by making a charging order as under the English practice, or by making a payment order, the course generally adopted in India. This application was for such an order. The Court does this in order to prevent A from preventing A-1 getting his lien. I use the simplest possible language. The Court will go further. The Court will stop B from arranging with A to prevent A-1 from getting his lien. Now, in doing this the Court is interfering with a third party. B is a third party to the transaction, which is under discussion, and it will, therefore, only do so under special circumstances. 21. The case where B has unquestionably to pay, say Rs. 10,000 to A, may be left on one side. There the Court, if satisfied that A-1 has taken reasonable, not necessarily exhaustive or exhausting steps to recover his wages from his employer A, will without much difficulty make an order for direct payment. (See the judgment of Rankin C.J. in the case of Harnandroy Foolchand v. Gootiram Bhuttar, 46 Cal. 1070 : (A.I.R. 1920 Cal. 122)) 22. The difficulty arises where B's liability for Rs. 10,000 or whatever sum it be, is neither unquestionable nor unqualified, namely, the case of compromise or set-off: Premsukhdas Singhynia Vs. N.C. Bural and Pyne, AIR 1935 Cal 168 . For the purposes of analysis, I draw a distinction between compromise and set off; a distinction which may be convenient to bear in mind, but which in many cases is one rather of degree than of kind. For instance, compromise may and often does involve an element of set off. Indeed, Mr. Sankar Banerjee reminded me that in that every case the claims on both sides had been to a considerable extent crystallised by decrees or orders. For instance, compromise may and often does involve an element of set off. Indeed, Mr. Sankar Banerjee reminded me that in that every case the claims on both sides had been to a considerable extent crystallised by decrees or orders. The case before us, however, is a good specimen of setoff as such. The capacities in which the two parties A and B stood in respect of their respective claims were painfully identical. Only, almost as a matter of accident, were there two suits, one in Calcutta and one in Khulna. Substantially the transaction and the proceedings upon that transaction were one and the same. 23. In a case of set-off, it seems roughly that three positions may be identified: (a) Different subject-matter and different suits; (b) the same subject-matter and different suits; and (c) the same subject-matter and the same suit. The case before us is at the worst of class (b). The problem is under what circumstances can an Attorney A-1 intervene or intercept the right to set off between A and B. I must apologise to counsel for not discussing the authorities in greater detail, but the decision which I propose to give is one of principle as applied to the special facts of this case. Apart from one decision only, that of Panckridge, J. in Haridas Datta v. Kalu Ram Bhowsingka, 63 Cal. 746 : (40 C.W.N. 458), from the principle laid down in the other decided cases I do not differ. The question is as to its application. The decision in Haridas Datta v. Kalu Ram Bhowsingka, 63 Cal. 746 : (40 C.W.N. 458) turned upon a provision of the Code. It involved an insignificant amount and probably was not fully argued. Order 8, R. 6, Civil P.C. refers specifically to a set-off in the same suit. It must, therefore, if applied, be applied by analogy. If the analogy applies it will be found that the result of the litigation is one decree, one "fruit" for the balance. Had the suits before us been one suit and O. 8, R. 6 applied, the "fruit" would have been one of 15 annas or Rs. 1,50,000 for B. There would, therefore, be nothing to which the lien could attach. Sub-section (2) appears to contemplate some system, with which I am not familiar, of providing for pleader's costs in the decree. Had the suits before us been one suit and O. 8, R. 6 applied, the "fruit" would have been one of 15 annas or Rs. 1,50,000 for B. There would, therefore, be nothing to which the lien could attach. Sub-section (2) appears to contemplate some system, with which I am not familiar, of providing for pleader's costs in the decree. The other provisions of the Code to which reference was made are O. 21, R. 18, set-off of cross decrees, and O. 21, R. 19. 24. In a recent case the tests or rules by which the Court will proceed in deciding whether it will interfere in favour of A-1 to the prejudice or detriment of B in the matter of set-off have been formulated by Das J. (Sm. Tepi Bala Ash v. Sm. Asima Sundari Ash, 47 C.W.N. 394 : (I.L.R. (1943) Cal. 172).) But all the authorities seek to discover the indications required to ascertain fraud. It has been stated that the Court may interfere where there is an "equity in favour of the attorney", and I shall not decide that there can be no possible case where it would not be fair or equitable to grant relief to the attorney notwithstanding a right to set-off in B apart from fraud. Such cases may exist. The ordinary case with which we are concerned, is fraud. 25. The problem in this case is as follows and I again take for the purpose of convenience the two positions in 1938 and 1943: 26. (a) 1938. Had B a right in 1938 to postpone or be protected against execution of the decree of Rs. 10,000? Mr. Banerjee was correct in pointing out that there exists no specific provision in the Code for such a case. But such orders are and having regard to the preliminary decree already passed, it is more than likely if the Court would have exercised the jurisdiction, which it has on the Original Side, to make an order in the form of stay or injunction adapted to the particular circumstances. I do not think that except upon terms, an application for execution by A in 1938 would have been allowed. 27. (b) 1943. B has a right. Can he be deprived of it by reason only of the fact that he gave no notice to A when seeking to exercise it? I do not think that except upon terms, an application for execution by A in 1938 would have been allowed. 27. (b) 1943. B has a right. Can he be deprived of it by reason only of the fact that he gave no notice to A when seeking to exercise it? It must be borne in mind that there is no suggestion here of B making a present of Rs. 10,000 to A. For instance, that A could have paid the whole Rs. 1,60,000 to B out of which B would have been able to give credit for Rs. 10000 and therefore provide for the attorney. In fact, the applicant's whole case is that A is unable to pay anything to anybody and upon that basis the Application is made. The contention of A-1, therefore, is that B should suffer rather than himself. In my opinion this is an error. A-1 chose A, his own client. In order to expect relief A-1 must show that B is in some way responsible for or prevented A paying him his wages. 28. It is in the light of these observations that I approach the judgment of the learned Judge. First I desire by no means to qualify the learned Judge's description in the first line of the applicant. The applicant is a respected attorney of this Court, (1) Delay: as regards delay referred to at p. 35 of the paper book I do not think that this is to be explained wholly by what may be called the immobility of big guns. I think that in part the delay is to be attributed to the cause which prevented recourse to the normal or usual procedure, an application for execution, namely, apprehension with regard to the result. It was not until the applicant was provided with a possible case of fraud that the application was brought on. (2) "Collusion;" this phrase is used throughout the judgment, and to it I shall in a moment make specific reference. (3) "Costs" (page 26 of the paper book). I do not think that it was the learned Judge's intention to suggest that a decree for costs would attract to the attorney for the decree-holder any rights higher than any other decree. (p. 26 line 12 and line 22 of the paper book). (3) "Costs" (page 26 of the paper book). I do not think that it was the learned Judge's intention to suggest that a decree for costs would attract to the attorney for the decree-holder any rights higher than any other decree. (p. 26 line 12 and line 22 of the paper book). (4) "Result"-The phrase "the result will inevitably be to deprive" appears at p. 26 and in two places in p. 29. To this again I shall presently return. (6) "It has nowhere been said that the plaintiff at any time was informed, believed or even thought that the balance of the amount of the attorney's costs had been paid to him". I assume that this is mentioned as a circumstance showing intention to defraud and not as a suggestion that the client of B-1 is at law under any obligation whatsoever to A-1, the attorney of A, apart from a duty to refrain from joining with A in a fraud against A-1. 29. This brings me to "collusion", the word so often appearing in the decisions, but which I prefer to avoid because it is so generally used as padding material in pleadings and without any clear appreciation of its significance. By itself it means no more than an agreement and here there was a collusive act or an agreement to set off. By itself such agreement is innocuous. This is no criticism of the learned Judge because he makes clear at line 40 of p. 29 of the paper book that he uses "collusion" in the sense of common intention to deprive the attorney of his lien and his costs. But in my opinion this even is by itself insufficient. In one sense in situations such as this the intention is to deprive the attorney, if intention is (as it may be), to be inferred from the inevitable result. 30. The result here was "inevitably to deprive". We may say that B intended to prevent A-1 from getting Rs. 10,000; that the inevitable result, was to do so. But the concurrent intention and result was to protect B from losing Rs. 10,000 in addition to Rs. 1,60,000. His object, and his intention also was to protect his own pocket. He was not assisting A to cheat A-1. We may say that B intended to prevent A-1 from getting Rs. 10,000; that the inevitable result, was to do so. But the concurrent intention and result was to protect B from losing Rs. 10,000 in addition to Rs. 1,60,000. His object, and his intention also was to protect his own pocket. He was not assisting A to cheat A-1. In my opinion the law differs not from an ordinary man's conception of fair play; that A, who owes B Rs. 1,50,000 but who himself owes A Rs. 10,000 and who cannot pay B should compel B to pay his own attorney, A-1, wages which he himself has failed to pay; or, put otherwise, that A-1 should be assisted by the Court to compel B to pay him, would strike, a layman as unfair. Any man in the position of B would say to A-1. "True, you may suffer but why should I? I want to keep my Rs. 10,000. True, by doing so I deprive you of Rs. 7000". The "intention" in this sense is, in my opinion, at law insufficient to establish a right in the attorney to intercept set off. 31. If these views be correct, it seems to me that the order of the Khulna Court dated 28th June 1943, must be regarded as a nullity and no more; that had the matter been discussed upon notice, as it is now being discussed, the Court would not have intervened on behalf of the attorney. The appeal therefore must be allowed. 32. We do not intend to disturb the order as to costs of the Court below. The costs of the appeal will follow the result. 33. The security deposited with the Registrar may be withdrawn three weeks hence. Nasim Ali, J. 34. I agree with the order which my lord the Acting Chief Justice has made in this case.