1. This petition arises out of an order made by the learned Additional Subordinate Judge of Mysore, awarding compensation of Rs. 100/-under Section 93 of the Code of Civil Procedure. The Petitioner before me instituted a small cause suit in the said Court of the Additional Subordinate Judge, Mysore, for arrears of rent on 1-2-1952. On that very day he obtained an order of attachment of an immoveable property of the defendant before judgment. On 6-3-1952, the defendant filed his objections to the said attachment, and on that day he also filed an application under Section 95 C. P. C., for compensation.
On 14-11-1952 the suit was decreed. It is not clear as to what happened with regard to the attachment which had been levied. The application for compensation was, however, taken up and an order was made on 16-11-1954, by the learned Subordinate Judge awarding Rs. 100/- as compensation to the defendant. It is against that order that the present petition has been filed.
2. Before me it was urged by the learned Advocate appearing on behalf of the Petitioner that no such order could be made because the defendant in his said application under S. 95 C. P. C., did nnt allocated that he had suffered any expense or injury and there is also no finding by the learned Judge on that point. He referred me to the provisions of Section 95 which inter alia provides as follows:
'(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,--
(a) it appears to the Court that such arrest.attachment or injunction was applied for on insufficient grounds ..... thedefendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him.'
The learned Advocate for the Petitioner contended that the section itself shows that the compensation to be awarded would be the compensation for the expense or injury caused to the defendant. The defendant must, therefore, allege and prove that he had suffered some expense or injury by reason of such attachment. In this case, it was pointed out to me, the defendant merely stated in his petition that he may be awarded compensation of Rs, 100/-for wrongful attachment on insufficient grounds and he did not allege that he had suffered any expense or injury owing to such attachment.
The learned Advocate, therefore, contended that this order was made without jurisdiction and should be set aside. In support of that contention, he relied on two decisions of the Calcutta High Court, being Chandulal Siraogi v. Puma Chandra Paul, 39 Cal W. N. 915 at p. 916 (A) and Jowarmull Chimanlal v. Iswardas Agarwalla : AIR1932Cal695 .
3. It seems to me that the contention of the learned Advocate for the Petitioner is sound and should be accepted. Apart from the decisions to which I shall presently refer, the section itself makes it quite clear that the Compensation to be awarded shall be reasonable compensation for 'expense or injury caused to him.' The compensation, therefore, can only be paid for such expense or injury which the defendant suffered by reason of such attachment.
It follows, therefore, that the petitioner has to aver in his petition that by reason of such attachment he has suffered expense or injury and ho claims compensation for it. He shall have also to prove that he suffered such expense or injury. In this case, there is neither any averment nor proof of any expense or injury having been caused to him by reason of such attachment
4. Coming to the decisions on this point, it appears that the Calcutta High Court has consistently held in favour of the view which I am taking in this matter. In the case of 39 Cal W. N. 915 (A), Mr. Justice Mitter held that in order that a claim under Section 95 be admissible, it is necessary that the Court should find that the attachment or arrest or injunction was applied for on insufficient grounds, and secondly, it can only award compensation for the expense or injury caused to the defendant.
His Lordship observed that this would follow from a plain construction of the section that any claim whatsoever that the defendant may choose to put forward in such an application is not admissible, and the claim must be in respect of some damage caused to him as the proximate result of the attachment, arrest or injunction which had been applied for on insufficient grounds. In an earlier decision of the said High Court in : AIR1932Cal695 , Rankin C. J. and Chose J. took a stricter view of the provisions of Section 95 of the Code of Civil Procedure.
Their Lordships held that where a defendant was restrained from dealing with, disposing of or alienating any of the movable or immovable properties belonging to him except in the usual course of business so far as the movable properties were concerned and the injunction was afterwards dissolved, and the defendant claimed damages basing bis claim not on the ground that be had any intention or opportunity of dealing with h's immovable properties or movable properties otherwise than in the usual course of business or that he has lost a chance of doing so but on the ground that this kind of injunction was a reflection on his character and upon his business stability and that as a consequence of it nobody entered into dealings with him and that his friends began to break their contracts with him and failed to do their duty, a claim of this character would not entitle the Court to direct an enquiry as to the damages suffered by the defendant,
5. The learned Advocate appearing on behalf of the Respondent, on the other hand, referred me to a decision of the Madras High Court in Palani-sami Goundar v. Kaliappa Goundar, AIR 1940 Mad 77 (C) wherein the view taken was that in an application under Section 95 C. P. C. special damage need not be proved, and the words 'expense or injury' indicate that either the particular damage upon, which a monetary value can obviously be placed cr the more general damage which the Court endeavours with difficulty to assess in terms of money, is contemplated by the section.
It should be noted that was a decision of a single Judge of the Madras High Court. He based his conclusion on the fact that in Madras at least it appears that in a suit for damages for illegal attachment it Is not necessary to prove more than general damage, e.g. mental pain, general loss of reputation, etc. With all respect to the learned Judge who decided that case, I am unable to accept the view which has been taken therein. It appears to me that we have to go by the language of the said section (Section 95 C.P.C.) and the same, in my opinion, fully justifies the view which I am taking in this matter and which is supported by the authorities of the High Court at Calcutta to which I have referred.
6. In my opinion, therefore, the fact that it has not been established by the defendant in this case that he suffered any expense or injury, disentitles the learned Judge from making any order on this application under Section 95 C.P.C. There is not even an averment in his application that he suffered any damage either general or special by reason of such attachment, nor is there any finding by the lower Court on this point.
I have already referred to the averments made in the application on this point, and as for the decision of the lower Court it appears that the only thing that has been said on this paint, after finding that the attachment of the property applied for was on insufficient grounds and therefore that the defendant claimed Rs. 100/- as compensation is that the defendant's claim is very reasonable. There is no finding that the defendant suffered any expense or injury.
7. In these circumstances, I hold that the petitioner should succeed in this petition, I, therefore,eet aside the order of the lower Court and allowthis petition wish costs.
8. Petition allowed.