1. After setting out the facts as above his Lordship proceeded : It was not suggested at the hearing of the suit before me that the defendants were actuated by malice or that there was absence of reasonable or probable cause in suing out the writ. Counsel for the plaintiff took his stand on the fact that the decree being against the estate of the plaintiff's father in the hands of his sons, the Court had no jurisdiction to direct a writ to issue against the person of the plaintiff, in support of his contention he relied on Brooks v. Hodgkinson (1859) 4 H. & N. 712 and Barker v. Braham (1773) 3 Wilson 368. On behalf of the defendants it was contended that the writ was justified by the order of the Court and reliance was placed on Raj Chunder Roy v. Shama Soondari Debi I.L.R. (1879) Cal. 583 and Thakdi Hajji v. Budrudin Saib I.L.R. (1906) Mad. 208. I do not think that either of the two Indian cases has any direct bearing on the present case.
2. Section 52 of the Code of Civil Procedure (1908), which relates to enforcement of decrees against legal representatives, is as follows:
(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he had duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.
3. At the hearing of the suit it became material to inquire how it was that the learned judge came to pass the order which he did, namely, 'Execution to issue against first defendant only.' But the evidence of what happened when the order was made is very meagre. The notes taken down by the learned Judge are as follows:
Defendants absent. Tokersey plaintiff No. 3 s. a. proves service and claim. Execution to issue against defendant No. 1.
4. Tokersey, who appeared to me to have seen very little of litigation, stated in his evidence before me as follows:
That notice was returnable on 24th June 1922. On that day I appeared before the learned Judge Mr. De Quadros. I had not engaged any pleader. I do not remember whether the defendant appeared on the notice. My name was called out and I entered the witness box. The interpreter asked me what I wanted. 1 said as the Judge orders.' The interpreter then said 'Execute the decree against the 1st defendant.' I then left the Court. I had a piece of paper and the interpreter made an endorsement on it and gave it to me.
5. Mr. Ishwarlal says in his evidence that the Judge has the decree before him when orders are made on notices issued under Order XXI, Rule 22. The piece of paper referred to in the evidence of Tokersey was evidently the decree of the Court, I have no reason to disbelieve Tokersey's evidence and I accept it.
6. I do not understand what the learned Judge meant by 'claim' mentioned in his notes. I am not sure whether it refers to the defendant's claim to proceed against the plaintiff personally. But the fact stands that the writ, which the Registrar pronounced illegal, had the order of the learned Judge behind it, and in this respect the present case differs from the two English cases cited by counsel for the plaintiff, which I proceed to consider.
7. In Brooke v. Hodgkinson the defendant had obtained a judgment against the plaintiff for 13. The defendant caused a writ of ca. sa. sued, and the plaintiff was arrested under the writ. The writ was issued in disregard of the Statute 7 & 8 Vic. Clause 96, Section 57, by which it was provided that 'no person shall be taken or charged in execution upon any judgment whereon the sum recovered shall not exceed the sum of 20.' Section 59 of the Statute enabled the Judge who triad the cause to order the defendant to be taken in execution even if the judgment was for less than 20, if it appeared that he had obtained credit from the plaintiff under false pretences. No order to take or detain the plaintiff in execution upon the judgment was made under Section 59. The plaintiff brought an action for damages against the defendant for false imprisonment, and it was held that he was liable. It is to be observed that in Brooks' case the writ was issued not under any order of the Judge, but on the application of the defendant's solicitor. This point is brought out prominently in the replication, and it is expressly mentioned in the head-note of the case. Further, the writ in Brooks' ease was issued in spite of the statutory prohibition contained in the enactment referred to above.
8. In Barker's case a judgment was obtained by Mrs. Braham against the plaintiff, who was the administratrix of the estate of her deceased husband, for 400 to be recovered out of the assets of the husband. Mrs. Braham employed a solicitor who first sued out a writ of fi. fa., and the sheriff seized the plaintiff's husband's goods worth about 164. For the balance, the solicitor without obtaining any order of the Court sued out a ca. sa. against the plaintiff and himself delivered the same to the sheriff, and gave orders and directions to the sheriff to take and arrest the plaintiff. The plaintiff was thereupon arrested and committed to prison.. The plaintiff brought an action against the defendant for damages for wrongful arrest and imprisonment. It was held that both Mrs. Braham and her solicitor were liable. In the course of his argument counsel for the plaintiff laid great stress on the fact that the writ was not supported by any order of the Court. De Gray C.J. said (p. 376):
A sheriff, or his officers, or any acting under his or their authority, may justify themselves by pleading the writ only, because that is sufficient for their excuse, although there be no judgment or record to support or warrant such writ; but if a stranger interposes and sets the sheriff to do an execution, he must lake care to find a record that warrants the writ, and must plead it; so must the party himself at whose suit such an execution is made.... Mr. Norwood (the attorney) has pleaded not guilty; but could not justify by a special plea, because there is no record to warrant a capias ad fatisfaciendum against Mrs. Barker (the plaintiff); nor could he have justified himself by pleading that he ignorantly sued out the writ, for ignorance is no excuse.
9. In the present case there is a record (Exh. No. 2) that warranted the writ. It was the direction of the learned judge that execution do issue against the first defendant. It may be that the learned judge had no materials before him to justify the order which he passed. But assuming it was so, the case is one of an erroneous order passed by a Court, and not one of absence of jurisdiction. It is well established that no action will lie against any person for issuing execution or otherwise acting in pursuance of a judgment or order of a Court of Justice even though it is erroneous. A valid order, however erroneous in law or in fact, is a sufficient justification for any act done in pursuance of it. I, therefore, hold that the plaintiff' has no cause of action against the defendants and dismiss the suit with costs.