Case Note & Summary
The petitioner, a legal practitioner, filed a suit for recovery of unpaid professional fees and expenses amounting to Rs.1,42,975/- against the respondent, who had engaged his services in three cases: LAR No.1625/2001, Special Darkhast No.131/2009, and Special Darkhast No.37/2015. The petitioner filed an application under Order 38 Rule 5 CPC for attachment before judgment of the decreetal amount payable to the respondent in the acquisition proceedings, contending that the only property available with the respondent was that decreetal amount. The Trial Court rejected the application. The High Court, in writ jurisdiction, set aside the impugned order and allowed the application, directing attachment of the decreetal amount to the extent of the claimed amount, holding that the Trial Court had failed to consider the petitioner's submissions and the fact that the respondent had no other property.
Headnote
A) Civil Procedure - Attachment Before Judgment - Order 38 Rule 5 CPC - Professional Fees - The petitioner, a legal practitioner, sought attachment of the decreetal amount payable to the respondent in acquisition proceedings to recover unpaid professional fees and expenses. The Trial Court rejected the application. The High Court held that the Trial Court failed to consider that the only property available with the respondent was the decreetal amount, and the petitioner had a legitimate claim for fees and expenses. The impugned order was set aside and the application was allowed. (Paras 3-10)
Issue of Consideration
Whether the Trial Court erred in rejecting the application for attachment before judgment under Order 38 Rule 5 CPC when the only property of the defendant was the decreetal amount in acquisition proceedings and the plaintiff had rendered professional services.
Final Decision
The impugned order dated 14.09.2015 is set aside. The application Exhibit5 is allowed. The Trial Court is directed to attach the decreetal amount in Special Darkhast No.37/2015 to the extent of Rs.1,42,975/- and ensure that the amount is not paid to the respondent without the permission of the Trial Court.
Law Points
- Order 38 Rule 5 CPC
- attachment before judgment
- professional fees
- legal practitioner's lien
- recovery of expenses
Case Details
2015 LawText (BOM) (09) 19
Writ Petition No.9591 of 2015
Shri N.V. Gaware h/f Mr. Gajanan K. Sontakke & Mrs. P.G. Sontakke for Petitioner, Shri N.P. Patil Jamalpurkar for Respondent
Annarao s/o Govindrao Patil
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Nature of Litigation
Writ petition challenging rejection of application for attachment before judgment under Order 38 Rule 5 CPC in a suit for recovery of professional fees and expenses.
Remedy Sought
Petitioner sought attachment of decreetal amount in acquisition proceedings to recover unpaid fees and expenses.
Filing Reason
Respondent failed to pay professional fees and expenses incurred by petitioner in conducting three cases on his behalf.
Previous Decisions
Trial Court rejected application Exhibit5 under Order 38 Rule 5 CPC on 14.09.2015.
Issues
Whether the Trial Court erred in rejecting the application for attachment before judgment under Order 38 Rule 5 CPC.
Submissions/Arguments
Petitioner argued that the only property available with the respondent was the decreetal amount in acquisition proceedings, and without attachment, recovery would be impossible.
Respondent opposed the application, but specific arguments not detailed in judgment.
Ratio Decidendi
Under Order 38 Rule 5 CPC, attachment before judgment can be granted if the defendant is about to dispose of or remove his property to defeat the decree. In this case, the only property of the respondent was the decreetal amount, and the petitioner had a prima facie claim for professional fees and expenses. The Trial Court failed to consider these facts, and thus the order was set aside.
Judgment Excerpts
The Petitioner is aggrieved by the order dated 14.09.2015 passed by the learned Trial Court below application Exhibit5 which was filed under Order 38 Rule 5 of the Code of Civil Procedure in RCS No.442/2015.
The grievance of the Petitioner is that the only property available with the Respondent has been acquired in the acquisition proceedings. There is no other property held by the Respondent.
Procedural History
Petitioner filed Regular Civil Suit No.442/2015 for recovery of fees and expenses. He filed application Exhibit5 under Order 38 Rule 5 CPC for attachment before judgment. Trial Court rejected the application on 14.09.2015. Petitioner filed Writ Petition No.9591/2015 challenging the order. High Court allowed the petition on 22.09.2015.
Acts & Sections
- Code of Civil Procedure, 1908: Order 38 Rule 5
