1. This suit has been filed by the plaintiffs to recover a sum of Rs. 1,05,000 by way of damages on the ground that an attachment before judgment and injunction were applied for by the defendants in this suit in Suit No. 2145 of 1921 filed by the defendants against the plaintiffs on insufficient ground, that such application was made by the defendants wrongfully and maliciously and without reasonable and probable cause, and that by reason of such wrongful application the plaintiffs suffered damage in their credit and reputation and have been put to trouble and inconvenience and expenses.
2. Various issues were raised by Mr. Munshi for the defendants. The first issue is whether the plaint discloses any cause of action. Mr. Munshi has asked the Court to try this issue as a preliminary issue in .order to save the costs and expenses of inquiring into the merits if the first issue is decided in the defendants' favour. Mr. Munshi has contended that the plaint does not disclose any cause of action on two grounds: first, that no attachment was in fact levied and that the mere procuring of an order for attachment before judgment does not of itself afford a cause of action for damages, and, secondly, that the order of attachment in the original suit was confirmed and a summons to vacate the said order was discharged by the learned Chamber Judge who heard it; that it is an essential part of the cause of action in a suit for damages for the abuse of civil proceedings that the proceeding in which the process complained of is taken out should have terminated in favour of the plaintiff or that the particular process complained of has been superseded or discharged.
3. In my opinion the defendants are right in both of their contentions on this point. As to the first point, it is admitted by the plaintiffs that no attachment was in fact levied, but the plaintiffs' counsel contends,-although the cause of action is not so stated in the plaint,-that the very fact of the Court's bailiff going to the shop of the plaintiffs with a view to enforce the warrant of attachment was sufficient to cause damage to the credit of the plaintiffs, and that the fact of the bailiff's going in execution of the order, which, the plaintiffs say, was obtained maliciously and without probable and sufficient cause, was an abuse of the process of the Court, and that the plaintiffs need not allege anything further to entitle them to damages for the said act. In paragraphs 12, 13 and 14 of the plaint, the plaintiffs contend that they had suffered damage by reason of the wrongful application made by the defendants for attachment before judgment. Even assuming that the plaintiffs are now entitled to prove that the bailiff went to the shop to enforce the warrant of attachment and that to prevent such attachment moneys were paid by a relative of the plaintiffs, as stated in the plaint, the said act of the bailiff does not give any cause of action to the plaintiffs. In Rama Ayyar v. Govinda Pillai (1915) 39 Mad. 952, attachment was not in fact levied on the plaintiff's moveables, but the reason why it was not levied is not stated in the facts of the case. Probably, there also the plaintiff paid the security, which is always mentioned in every warrant of attachment of goods, and for that reason the attachment was not levied. From the judgment of Mr. Justice Napier it appears that the bailiff did go to attach the moveables in pursuance of the warrant of attachment in that case. The only reason, therefore, to my mind, why the goods were not attached must have been that the plaintiff there gave security. But even if that was not the case the plaintiff in that suit did put his cause of action on the ground of the defendant's action in applying for attachment before judgment and 'coming to attach his moveables', and the Court there held that procuring an order for attachment before judgment however maliciously did not of itself afford a cause of action for damages. In the present case also what happened, according to the plaintiff, was that the bailiff went to the shop of the plaintiffs to attach and that in fact no attachment was levied as a relative of the plaintiffs paid the amount mentioned in the warrant as being payable by the plaintiffs as security on his failing to show cause to the contrary. The warrant of attachment here does not order the plaintiffs to pay security and in default of such payment order attachment of the goods of the plaintiffs. As pointed out in Lotlikar v. Lotlikar (1881) 5 Bom. 643, where a similar provision in the old Civil Procedure Code was considered by the Appeal Court, the construction of the usual order of attachment before judgment is this. The defendants are called upon to furnish security for the fulfillment of any decree that the plaintiffs might obtain against them or to show cause on any day fixed in the order why security should not be furnished and to this direction is appended an order for provisional attachment as provided in the form at the end of the Civil Procedure Code. Mr. Justice West, in his judgment at p. 644, says that an order made under Section 484, which is similar to the provision for attachment before judgment in the Code of Civil Procedure, 1908,might mean 'an attachment to be made conditionally on the security not being furnished or cause shown by the prescribed day, or it might mean an immediate attachment of a provisional kind conditioned to become plenary if security should not be furnished, or cause shown according to the terms of the order'. Mr. Justice West held that the form showed that the latter was the intention of the Legislature, and he goes on further to hold that if the attachment had been actually made it would in the first instance have been only a temporary one and the defendants showing cause on the day fixed in the order would have had it set aside, and that to prevent the discredit and inconvenience that would arise from the attachment they took the only step open to them, namely, to pay the amount of security mentioned in the order. As Mr. Justice West observes (p. 644): 'The order for attachment was supplementary to that for furnishing security, and the order for furnishing security was itself, if the defendants chose, dependent on their failing to show cause on [the day fixed]. Primarily, therefore, they had till that date to prepare their reasons, and the additional order for intermediate attachment could not deprive them of that right. Neither, therefore, should the giving of security to avoid the pressure of that order.' These observations of Mr. Justice West clearly show that the giving of the security before showing cause as to whether security should be given or not is entirely optional with the plaintiff and that if he does give it, it is merely to avoid the discredit and inconvenience that might arise from the attachment.
4. The plaintiffs here have based their cause of action on the ground that there was discredit and inconvenience by the mere fact of the bailiff going to their shop, not by reason of the giving of the security. The giving of the security in fact saved the discredit and the inconvenience. The plaintiffs, therefore, cannot contend that the very act which was done to save discredit and inconvenience resulted, notwithstanding its object, in discredit and inconvenience. To my mind this is a contradiction in terms, and, as observed in Rama Ayyar v. Govinda Pillai (1915) 39 Mad. 952, there cannot be alleged any possible inconvenience or discredit by reason of the giving of the security, which would form the basis for a claim for damages for abuse of the process of the Court. Mr. Mehta contended that procuring an order for attachment with the object of getting speedy payment of the amount claimed in a suit was an abuse of the process of the Court sufficient to give the plaintiffs a cause for action for damages. In Grainger v. Hill (1838) 4 Bing. N.C. 212, it was held that where the process of the law had been abused to effect an object not within the scope of the process, it was immaterial whether the suit which that process commenced had been determined or not or whether or not it was founded on reasonable and probable cause. Even in Grainger v. Hill (1838) 4 B N.C. 212 the process was enforced and the plaintiff was arrested. The principles of that case are applicable only where the process is employed to compel the aggrieved party to do something which he is not legally bound to do under the process, and not in a case like this which is analogous to an action for a malicious arrest or malicious prosecution. I need not refer to the various cases cited and discussed in Rama Ayyar v. Govinda Pillai (1915) 39 Mad. 952. I express my entire agreement with the reasoning in the judgment of Mr. Justice Napier in that case.
5. Section 95 of the Civil Procedure Code, which provides for compensation in the case, of wrongful attachment of the goods of a party, clearly shows that it is applicable only where the attachment is in fact effected and does not apply to a case where the attachment is applied for and has not in fact been levied. The remedy by way of a suit is allowed where the aggrieved party claims a larger compensation than Rs. 1,000. But that does not make the basis of the suit any way different from the basis on which compensation is allowed in the suit itself where the process has been wrongly put into effect, excepting that in a suit something more is required than under Section 95 and not that something less is required, namely, that under Section 95 it is sufficient to prove that the attachment was applied for on insufficient grounds, while in a suit the plaintiff has to show not merely that it was applied for on insufficient grounds but that it was so done maliciously and without reasonable and probable cause.
6. On these grounds, therefore, I hold that the fact that attachment was not levied is quite sufficient to put the plaintiffs out of Court and that the plaint does not disclose any cause of action for damages.
7. Coming to the second ground, in my opinion, it is an. essential part of the cause of action in a suit like this that the plaintiff must show that the order under which, he says, the process was enforced to his detriment 'whether by way of attachment or by way of arrest, was set aside in the original suit. Halsbury's Laws of England, Vol. XIX, at p. 692, gives the exceptions to the rule that the termination of the proceedings in favour of the plaintiff or discharge of the process complained of must be proved to give a cause of action to the plaintiff but the exceptions, to my mind, refer to cases of quite a different nature from a case under an order for attachment or arrest under the Civil Procedure Code. Under the Civil Procedure Code, an order for attachment is not confirmed until the party against whom it is made fails to show cause against the order on the day fixed for the purpose. If by reason of the party's absence on the day so fixed the order is confirmed ex parte the party may take out a summons for having the order vacated, and if he succeeds in satisfying the Court that he was unable to appear for a sufficient cause and that the order was not justified on the facts the order would be vacated by the Court. The order for attachment complained of in this suit was confirmed ex parte and the plaintiffs took out a summons for vacating the same, but unfortunately for them, although the learned Chamber Judge was of opinion that there was sufficient cause for the plaintiffs' absence and that the order was not justified on the facts, he dismissed the summons and did not vacate the order on the ground that the point was academic inasmuch as a decree had been passed against the plaintiffs for the amount which they had deposited for security and the plaintiffs had agreed that the amount so deposited by the plaintiffs should be withdrawn by the other party in satisfaction of the decree. The question, however, could not be treated as academic if the plaintiffs were going to claim heavy damages as they have done in this suit. The question was very important from that point of view. The plaintiffs' counsel ought to have brought that aspect of the order to the notice of the Chamber Judge. It does not appear from the notes of the Judge's clerk that this point was put before the Chamber Judge. It may be that the point was not then present to the mind of the plaintiffs, or that counsel may have thought that even if the order was set aside, as no attachment had been levied, the result would be merely academic. If it had been present to the mind of counsel that a big claim for damages was going to be made because of the wrongful attachment, he would have asked the Court to vacate the order on that ground. Whatever may be the reason, I must say that I cannot go by the opinion given by the learned Chamber Judge. I am bound by the fact that the original order for attachment was confirmed and still subsists. I cannot in this suit go into the merits of that order and hold that the order was wrongly made and treat the order as discharged or vacated. On the second ground also, therefore, I hold that the plaint discloses no cause of action inasmuch as it does not show that the original order of attachment was vacated.
8. On. this finding I do not think that the time of the Court or moneys of the parties should be further wasted in going into the merits of the case. I must say here that there is not a word in the plaint as to there being any damage by reason of the payment of the moneys by way of security. As to the damage by reason of the bailiff going in the shop, as held in Rama Ayyar v. Govinda Pillai (1915) 39 Mad. 952 , no such damage can possibly be proved, and to my mind, therefore, even on the merits it would be futile to allow the plaintiffs to adduce evidence to show that in fact there was damage. There could not possibly have been any damage.
9. I hold that it is not necessary to go into the other issues in the case, and that the suit must, therefore, be dismissed with costs.