1. This is a defendant's appeal arising out of a suit for damages. The plaintiff's case was that the defendant in execution of a, decree against her husband Abdul Rashid and others attached a hand-loom belonging to her on 24th of May 1924 and thereby deprived her of its use till 1st of September 1924, when, on objection being raised by her, the attachment was released. She alleged that she could not work the hand-loom for three months and eight days and suffered a loss of Rs. 98. The defence was an assertion that the hand-loom belonged to the judgment-debtor and a plea that the attachment was bona fide and the damage claimed was remote and excessive. The denial of the plaintiff's ownership of the hand-loom does not appear to have been seriously pressed in the Courts below, both of which have assumed that the hand-loom belonged to the plaintiff. In the grounds of appeal before me there is no suggestion that was not so. The main contention on behalf of the defendant now is that inasmuch as he had acted in a bona fide manner and the plaintiff has failed to prove any malice or any want of reasonable and probable cause her claim for damages should not have been allowed. The learned advocate for the appellant relied on the cases of Thakdi Hajji v. Budruddin Sahib (1906) 29 Mad 208: Surajmal v. Manekchand (1904) 6 Bom LR 704; and Nanjappa Chettiar v. Ganapathi Gounden (1911) 35 Mad 598.
2. In the last mentioned case it was remarked: 'There is no reason for departing, when a suit is filed for damages, from the well-established rule that when the plaintiff's grievance arises directly from the order of a Judicial Tribunal thought it is moved thereto by a private party; the defendant would not be responsible in damages unless he had acted with malice as well as without reasonable and probable cause,' All these three cases, however, were cases where damages were claimed against a person who was a party to the proceeding. In my opinion there is a clear distinction between cases of that kind and the cases where a decree-holder attaches property belonging to a third party and wrongfully deprives him of its use in consequence of such attachment. The innocent third party would be entitled to damages on account of the loss which he suffers by the wrongful attachment without proving any malice or any absence of reasonable and probable cause. This was the view expressed by this Court as early as 1873 in the case of Raynor v. Sungheer Singh (1873) 5 NWP 211. The learned Judges remarked: 'A judgment creditor is responsible in damages to any person whose property he wrongfully causes to be attached in execution of his decree without proof of mala fides.'
3. A similar view was expressed by the Calcutta High Court in the case of Soobjan Beebee v. Shaikh Shureeutoollah (1869) 12 WR 329 and in the case of Kanaye Pershad Bose v. Hur Chand Manoo (1870) 14 WR 120.
4. The case of Kissorimohun Roy v. Harsukh Das (1890) 17 Cal 436 is an authoritative pronouncement by their Lordships of the Privy Council on this point. In that case the decree-holder had attached properties belonging to persons who were no parties to the decree. In a suit for damages brought by the persons whose properties had been attached it was contended before their Lordships that the defendants were not responsible unless the plaintiffs alleged and proved that they had litigated maliciously and without probable cause their Lordships repelled this contention and remarked at page 442: 'That is a rule which obtains between the parties to a suit when the defendant suffers loss through its institution and dependence. It does not apply to proceedings taken by the injured party, after the wrong is done, in order to obtain redress. The summary proceeding under Section 278 was taken by the respondent for the purpose of getting the release of an attachment issued in a suit to which he was not a party; and it does not appear to their Lordships that in order to entitle him to recover full indemnity for the wrongful attachment of his goods, the respondent is bound to allege and prove that the appellants resisted his application maliciously, and without probable cause.'
5. In face of such a clear pronouncement by the highest tribunal there can be no room for any controversy.
6. The appeal is dismissed under Order 41, Rule 11.