JUDGMENT Banerjee, J. - The Petitioner is an attorney of this Court. He acted for the Defendant in the suit. 2. The suit was instituted by one Kali Das Banerji (since deceased) for a declaration that the conveyance dated February 12, 1940, executed by him in favour of the Defendant, in respect of premises No. 47/B, Durga Char an Mitra Street in Calcutta, was a bendmi transaction, for cancellation of the conveyance, and for other reliefs. 3. The Defendant entered appearance through the Petitioner and filed written statement. Pending suit, Kali Das died. By an order made on December 17, 1945, his death was recorded. The present Plaintiffs, his sons, were substituted in the place and stead of the deceased Plaintiff. 4. On April 8, 1946, the Plaintiffs made an application for a receiver. The application was opposed by the Defendant. No order was made on the application; the costs were ordered to be costs in the cause. 5. On August 12, 1946, the Plaintiffs made an application for amendment of the plaint. The amendment was allowed and the Plaintiffs were directed to pay to the Petitioner within a month from the date of the order a sum of Rs. 500, as assessed costs of the application. That sum was duly paid. 6. On August 12, 1947, the Petitioner received a letter dated August 11, 1947, from the Plaintiffs' attorney informing him that the suit had been withdrawn with the consent of the Defendant. 7. The Petitioner replied on August 12, 1947: Yours of the 11th instant. I am surprised to read the contents thereof. I have not been able to clearly understand what you have meant by stating that your client has withdrawn the above suit against my client in his presence and with his consent. If your client has obtained any order from Court, I fail to understand how you could allow my client to appear in person and give his consent before the Court as alleged by you without reference to me when you know fully well that I am his attorney on record. I have to receive a large sum as costs from my client.... The Petitioner, on August 28, 1947, wrote to the Defendant: ... I have to receive a large sum as costs from my client.... The Petitioner, on August 28, 1947, wrote to the Defendant: ... It is apparent that you appeared in person in Court on August 11, and gave your consent for withdrawal of the suit without reference to me solely for the purpose of depriving me of my costs due from you. I have a large sum due from you on account of costs. Please pay the same within twenty-four hours as otherwise I shall be compelled to move the Court for necessary reliefs. I am informed that you are trying to dispose of the premises No. 47/B, Durga Charan Mitra Street. On September 19, 1947, the Petitioner again wrote to the Defendant: In spite of my several letters you have not seen me....Please arrange to pay the sum of Rs. 546-10-3 early next week as otherwise I shall be reluctantly compelled to take legal steps against you for the realisation of my dues. 7. On the same day, the Petitioner informed the Plaintiffs' attorney of the amount due by the Defendant to the Petitioner on account of costs. 8. On January 2, 1948, the Petitioner wrote to Messrs. A.K. Rudra and Company, solicitors: I understand that the abovenamed Defendant Jogesh Chandra Basu has entered into an agreement with your clients Babus Amar Kumar Rudra and Samar Kumar Rudra for sale to them of the above premises. Please note that I have a lien for my costs of the above suit on the above premises and I am the attorney on record ' of the Defendant in the above suit. This suit has been filed by the Plaintiffs, inter alia, for a declaration that the conveyance, dated February 12, 1940, executed by, their father Kalidas Banerji, since deceased, in favour of the Defendant is a benami transaction and is void. In these circumstances, if your clients will purchase the premises from the Defendant they will do so with notice of my lien for my costs. 9. There was no reply to any of the letters. 10. It is clear from the above recited facts, that negotiations for the compromise took place without the knowledge of the Petitioner. 11. In these circumstances, if your clients will purchase the premises from the Defendant they will do so with notice of my lien for my costs. 9. There was no reply to any of the letters. 10. It is clear from the above recited facts, that negotiations for the compromise took place without the knowledge of the Petitioner. 11. The Petitioner took out this summons, dated January 8, 1948, in the suit, for orders which are substantially, as follows: (1) that the Petitioner be discharged from further acting as attorney for the Defendant; (2) that the Defendant do pay to the Petitioner the balance of his costs and the costs of and incidental to this application; (3) that a charging order be made on the said premises 47/B, Durga Char an Mitra Street. 12. In the petition it is alleged that the Defendant entered into the compromise in collusion with the Plaintiffs: that his object in not informing anything about the compromise to the Petitioner was to deprive him of his legitimate costs. 13. It is also alleged in the petition that the Petitioner recently came to know that the Defendant had entered into a contract for sale of the premises; that the premises were the only immovable property the Defendant had, and if the Defendant sold the property, there was no other property from which the Petitioner's costs could be realised. 14. The Petitioner admits having received a sum of Rs. 85 from the Defendant on account of his costs. His claim is for the balance. 15. On this application, Majumdar J. made an ex parte order charging the property for the Petitioner's costs. 16. The Defendant opposes the application strenuously. The following contentions were raised on his behalf: (1) that the Petitioner's lien had been discharged by. his refusal to act for the Defendant; (2) that there was no evidence of any collusive compromise; (3) that this Court had no jurisdiction to make a charging order on an immovable property; (4) that, in any event, no charging order could be made in a proceeding on an application. 17. As to the first contention, I do not find any fact to support the allegation that the Petitioner refused to act. This suit was compromised behind his back. I, therefore, hold against this contention. 18. 17. As to the first contention, I do not find any fact to support the allegation that the Petitioner refused to act. This suit was compromised behind his back. I, therefore, hold against this contention. 18. As to the second contention the law is thus stated by Das J. in Tepi Bala Ash v. Asima Sundari Ash ILR (1943) 2 Cal. 173: The Court will lend its assistance to protect a solicitor's lien for his unpaid costs against a collusive compromise before judgment, that is, a compromise entered into by the client specifically for the purpose of depriving the solicitor of his costs. Broadly and generally speaking, the Court will infer collusion when the evidence has established--(a) that the negotiations were behind the back of the solicitor, (6) that the opposite party or his solicitor knew that the complaining solicitor's costs were unpaid, (c) that the opposite party actually paid money or equivalent thereof to the complaining solicitor's client direct, (d) that the complaining solicitor's client is impecunious and there is no chance for the solicitor to recover the costs from his own client. 19. I do not think his Lordship laid down or intended to lay down exhaustively the tests on which the Court can come to a finding that a compromise is collusive. The question is one of fact, and must be decided on the facts of each case and the surrounding circumstances. No inflexible rule can be laid down on this point. 20. On the facts before Das J. he held, there was no collusive compromise and he refused to make an order. 21. But what are the facts in the present case? In the suit there was an attack on the Defendant's title to the property. There was an application for receiver. There was an application for amendment of the plaint. Costs were incurred by the Petitioner. Defendant paid only Rs. 85 to his attorney on account of costs.-He consented to the suit being withdrawn. He did not tell his attorney anything about the negotiations resulting in the compromise. The only property he has is 47B, Durga Charan Mitra Street. After the compromise, when the Petitioner writes letters to the Defendant he does not condescend to reply; he does not come to see him or make any arrangement for payment of costs. 22. He did not tell his attorney anything about the negotiations resulting in the compromise. The only property he has is 47B, Durga Charan Mitra Street. After the compromise, when the Petitioner writes letters to the Defendant he does not condescend to reply; he does not come to see him or make any arrangement for payment of costs. 22. The Defendant though he denies liability, when I asked his counsel whether the Defendant would furnish security for the amount claimed by the Petitioner pending an enquiry into the liability of the Defendant, his counsel said that the Defendant was not prepared to furnish any security. 23. On the facts stated above, I find as a fact that the compromise was entered into by the Defendant with the object of depriving the Petitioner of his costs. 24. As to the third contention, the law is that the rights and duties of attorneys are in no way part of the indigenous law or practice in India. The profession originates from England; and the English Common Law governs their rights and duties. A solicitor has, at common law, and apart from any order of the Court or statute, a lien for his costs over property recovered or preserved or the proceeds of any judgment obtained for the client by his exertions. Tyabji Dayabhai and Company v. Jetha Devji and Company ILR (1927) Bom. 855; Damodar Das v. Morgan and Company ILR (1933) Cal. 1442; Ganesh Chunder Mallik v. Narayani Dasi ILR (1939) 1 Cal. 212; Tepi Bala Ash v. Asima Sundari Ash ILR (1943) 2 Cal. 172. 25. Though in England a solicitor's lien was usually called a common law lien, the correct way of describing it was as "a lien "recognised by every branch of the High Court." In re Wright's Trust. Wright v. Sanderson (1901) 1 Ch. 317, 321. 26. In England formerly the charging order was made on personal property and not on real estate. 27. Owing to the decision of the House of Lords, in Shaw v. Neale (1858) 6 H.L.C. 581 : 10 E.R. 1422, that a solicitor had no lien on real estate recovered for the client, the legislature interfered; and the Solicitors Act, 1932 (22 and 23 Geo. 27. Owing to the decision of the House of Lords, in Shaw v. Neale (1858) 6 H.L.C. 581 : 10 E.R. 1422, that a solicitor had no lien on real estate recovered for the client, the legislature interfered; and the Solicitors Act, 1932 (22 and 23 Geo. 5, c. 37), Section 69--(replacing Solicitors' Act, 1860, Section 28), enacts: Any Court in which a solicitor has been employed to prosecute or defend any suit, matter or proceeding may at any time declare the solicitor entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit, matter or proceeding,.... 28. In India there is no difference between real and personal property: Norendra Nath Sircar v. Kamal-Basini Dasi ILR (1896) Cal. 563, 573 : L.R. 23 IndAp 18. 29. Chaudhuri J. in Kumar Krishna Dutt v. Hari Narain Ganguly ILR (1915) Cal. 676, 682, observed at p. 682: In this Court it has been held such right (attorneys' right of lien) extends to immoveable property. 30. Das J. in the case of Tepi Bala Ash v. Asima Sundari Ash cited above, at p. 173, observes: In India, no distinction is made between real and personal properties, and, therefore, in India the last mentioned lien which is called "particular lien" is operative against personal as well as real property recovered under a judgment. 31. The principle is recognised in the judgment of the Court of appeal in Mangal Chand Maloo v. Purna Chandra Bam ILR (1945) 1 Cal. 430. 32. On these authorities I hold that this Court can make a charging order on the immovable property preserved or recovered through the exertion of the attorney. 33. It is admitted in this case that the property in question is "property preserved" within the meaning of the rule. 34.I now pass on to the last contention: Can the charging order be made in an application in the suit in which the attorney acted for the client? 35. In England the practice is to obtain a charging order by an application made in the suit in which the attorney acts for the client. Previous to 1932, that order was made u/s 28 of the Solicitors Act, 1860. In Clover v. Adams (1881) 6 Q.B.D. 622, Grove and Lindley JJ. 35. In England the practice is to obtain a charging order by an application made in the suit in which the attorney acts for the client. Previous to 1932, that order was made u/s 28 of the Solicitors Act, 1860. In Clover v. Adams (1881) 6 Q.B.D. 622, Grove and Lindley JJ. made a charging order on money paid into Court holding that u/s 28 of the Solicitors Act, 1860, a Judge at chamber had jurisdiction to make such an order in an application in the pending suit. In Cordery on Solicitors, 4th Ed., at p. 496, under the heading "Practice", we find: 36. The application for a charging order in the Chancery Division is made by petition,' motion, or summons in chambers, according to the circumstances. In the King 8 Bench Division the order is usually made by summons in chambers; in the Probate, Divorce and Admiralty Division it is also made at Chambers. The proceedings are initialed in the matter of the action, but need not be intituted in the matter of the Act or in the matter of the solicitor. 37. But in India there is no such statute or rule or practice. 38. Under Ch. XXXVIII, Rule 48, of the Original Side Rules, an attorney can make an application for enforcement of his taxed costs. There is no other rule. There is no Act covering this point. 39. Rule 48 provides a summary procedure for the enforcement of taxed costs; but when the application by the attorney involves an enquiry, he is referred to a suit. This rule does not authorise the court to make a charging order. I have not been able to find any authority that in an application a charging order can be made. 40. In the case of Kumar Krishna Datta v. Hari Narain Ganguly (supra) Chaudhuri J. made a charging order in a suit brought by the attorney for that purpose. 41. Therefore, I am of opinion that no charging order can be made in this application. 42. The Petitioner if he is so advised may bring an appropriate suit. 43. In this case I feel that the attorney is entitled to protection of the Court. 44. Therefore, I make the following order: I dismiss the application. 41. Therefore, I am of opinion that no charging order can be made in this application. 42. The Petitioner if he is so advised may bring an appropriate suit. 43. In this case I feel that the attorney is entitled to protection of the Court. 44. Therefore, I make the following order: I dismiss the application. But I stay the operation of this order for a month to enable the Petitioner to file a suit if he is so advised, for appropriate reliefs. 45. If no suit is filed within the month the Petitioner will pay the costs of this application to the Defendant. But if the-suit is filed, the costs of this application will abide by the result of the suit. I certify this application as a fit one for employment of counsel. 46. If the attorney has not taxed his bill it may be taxed as early as possible. 47. It is a matter of regret that there should be a litigation over again for this small sum. The parties should come to a settlement if possible and avoid unnecessary and useless litigation.