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Babu Bishambhar Nath Vs. Goddar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.789
AppellantBabu Bishambhar Nath
RespondentGoddar
Excerpt:
wrongful attachment - property stolen during attachment--liability of thx decree-holder--cause of action--damages. - - 40, that is, for the damages claimed by the plaintiff and dismissed the suit for the value of the attached crops on the ground that the plaintiff had failed to prove that it was the defendant who removed them. so far as it is a suit for damages, it is clearly excepted from the cognizance of a court of small causes vide schedule ii of the provincial small cause courts act clause 35 (j). as to whether the defendant-appellant can be held liable for the value of the crops or not, the ruling relied on by the court below in the case of goma mahad patel v......attachment and in the custody of the shahna (the temporary bailiff) of the court, most of the attached crops disappeared. the shahna was prosecuted and found guilty under section 406, indian penal code, and sentenced to imprisonment. the plaintiff has instituted the present suit to recover a gum of rs. 457-8, which is made up of two items, namely, rs. 417-80 the value of the crops which disappeared while under attachment, and rs. 40 as damages for the wrongful act of the defendant. the court of first instance decreed the suit for rs. 40, that is, for the damages claimed by the plaintiff and dismissed the suit for the value of the attached crops on the ground that the plaintiff had failed to prove that it was the defendant who removed them. on appeal by the plaintiff, the lower.....
Judgment:

Griffin, J.

1. The defendant, who is appellant in this Court, in execution of a decree held by him against one Tula Ram, attached as the property of his judgment-debtor the crops of the plaintiff Groddar. The plaintiff filed an objection against the attachment. His objection was allowed and the attachment was removed. While the property was under attachment and in the custody of the Shahna (the temporary bailiff) of the Court, most of the attached crops disappeared. The Shahna was prosecuted and found guilty under Section 406, Indian Penal Code, and sentenced to imprisonment. The plaintiff has instituted the present suit to recover a gum of Rs. 457-8, which is made up of two items, namely, Rs. 417-80 the value of the crops which disappeared while under attachment, and Rs. 40 as damages for the wrongful act of the defendant. The Court of first instance decreed the suit for Rs. 40, that is, for the damages claimed by the plaintiff and dismissed the suit for the value of the attached crops on the ground that the plaintiff had failed to prove that it was the defendant who removed them. On appeal by the plaintiff, the lower appellate Court held that it was immaterial whether it was the defendant who had removed the crops or not; as he was a trespasser and wrongfully attached the crops, he was responsible for the value, No. matter who stole them. The learned District Judge found that the value of the crops was Rs. 92-8-0 and gave the plaintiff a decree for that amount in addition to Rs. 40 decreed by the Court of first instance. The defendant comes here in second appeal. A preliminary objection is raised that no appeal lies. It is contended on behalf of the plaintiff-respondent that the suit was one of a nature cognizable by a Court of Small Causes and the value being below Rs. 500 no second appeal lies. I was referred to various rulings by the learned Advocates of both the parties; but it appears to me on a reference to the plaint itself that the suit is not one cognizable by a Court of Small Causes. So far as it is a suit for damages, it is clearly excepted from the cognizance of a Court of Small Causes vide Schedule II of the Provincial Small Cause Courts Act Clause 35 (J). As to whether the defendant-appellant can be held liable for the value of the crops or not, the ruling relied on by the Court below in the case of Goma Mahad Patel v. Gokul Dass Khimji 3 B. 74 is a direct authority for the view taken by the learned District Judge. The facts of that case are on all fours with those of the case before me. On behalf of the appellant I am referred to the Privy Council decision in the case of Kishori Mohan Ray v. Harsukh Das 17 C. 436 : 17 I.A. 17, in which it was held that where the plaintiff's property was wrongfully attached by the defendant, the plaintiff was entitled to recover from defendant the difference in the market-value of the goods at the time of the attachment and their price when they were sold. The concluding portion of the judgment is relied on in support of the contention, advanced on behalf of the appellant, that he can only be held liable for the natural and necessary consequence of his act. It may be conceded that the theft or disappearance of the plaintiff's crops while under attachment was not in any sense the consequence of the wrongful attachment by the defendant. The fact remains that the plaintiff has suffered a loss for which he is entitled to compensation. His crops were wongfully attached by the defendant-appellant. He is entitled to get back his crops or their value, if the crops themselves are not available. The plaintiff had a complete cause of action at the date of the wrongful attachment and his right to the relief he was entitled to was not impaired by subsequent occurrences for which he was responsible. In the case reported in the case of Kissori Mohan Ray v. Harsukh Das 17 C. 436 : 17 I.A. 17 and referred to above, their Lordships of the Privy Council held that the plaintiffs are entitled to recover the value of the property wrongfully attached as it stood at the date of the defendant's unlawful act. The principle to be deduced from that ruling is that the plaintiff is entitled to be restored to the status quoante the illegal act of defendant. As to the ruling reported in Subjan Bibi v. Shuree-utoolah 3 B.L.R. 413 : 12 W.R. 329, quoted on behalf of the appellant, it appears that the learned Judges who decided it were largely influenced by the English law on the subject as held in the case of Walker v. Olding 1 H. & C. 621 : 32 L.J. Ex. 142 : 9 Jur. (N.S.) 53 : 7 L.T. 633 : 11 W.R. 186. Their Lordships of the Privy Council held in Kishori Mohan Ray v. Harsukh Das 17 C. 436 : 17 I.A. 17 that the rule of law laid down in Walker v. Olding 1 H. & C. 621 : 32 L.J. Ex. 142 : 9 Jur. (N.S.) 53 : 7 L.T. 633 : 11 W.R. 186 does not apply to India. This being the state of authority on the question to be decided in this case, I prefer to follow the decision of the Bombay High Court in Goma Mahad Patel v. Gokul Das Khimji 3 B. 74, which is directly in point. I dismiss the appeal with costs including in this Court fees on the higher scale.


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