Kanhaiya Lal, J.
1. This appeal arises out of a claim for compensation caused by the wrongful seizure and detention of certain movable property attached before judgment during the pendency of a suit instituted by the defendant against the plaintiff, for the recovery of money due on a promissory note alleged to have been executed by the latter. The attachment was made on the 14th July, 1919. Among the property attached were some carts and a pair of bullocks, one of which died during the pendency of the attachment.
2. The present plaintiff denied having executed the promissory note. The suit. was decreed by the Court which made the attachment but dismissed on appeal. The plaintiff whose property was attached claims compensation for the loss of profits, and the loss of one bullock, and also for the mental distress, and loss of reputation The suit was filed on the 14th July, 1921. The Courts below, applying Article 29 of the Indian Limitation Act, held that it was barred by limitation. That view is clearly unsustainable.
3. Article 29 applies to a suit for compensation for wrongful seizure of movable property under a legal process. There was no wrongful seizure in this case on the day on which the attachment was made. The order of attachment may have been passed on insufficient grounds; but the attachment which was made in pursuance of that order, could not be regarded as illegal, because the property attached was the property of the then defendant. The subsequent dismissal of the suit bad the effect of making the detention of the attached property wrongful, and if the detention could be treated as a continuing wrong, Section 23 of the Indian Limitation Act would, even if Article 29 were applicable, bring the suit within time. But if the seizure itself was in the circumstances in which it was made not wrongful, the detention of the property seized, while the fate of the suit was still uncertain, could hardly be treated as wrongful.
4 Order 38, Rule 9 of Code of Civil Procedure provides that an attachment made before judgment abates when the suit is dismissed. The right of the present plaintiff to the restoration of the property attached therefore arose on that date and under Article 49 of the Indian Limitation Act the present suit is within time. That article provides a limitation of three years for compensation for wrongfully taking or detaining a specific movable property from the date when the property is wrongfully taken or when the detainer's possession becomes unlawful. The detention in this case was made by the Court at the instance of the present defendant; and the defendant is responsible for the consequences. The detention became unlawful when the claim of the plaintiff was dismissed on the 15th March, 1921. Article 36 cannot apply because it is a residuary article, only applicable where no other article providing for such a suit is available.
5. The decision in Ram Narain v. Umrao Singh (1907) 29 All. 615 and the decision in Narasimha Rao v. Gangaraju (1908) 31 Mad. 431 are inapplicable, because the property there attached belonged to a third party against whom the seizure was wrongful on the very date it was made.
6. In Manavikraman v. Avisilan Koya (1896) 19 Mad. 80 it was held in somewhat similar circumstances that Article 49 was applicable. In fact, as pointed out in Sokkalingam Chetty v. Krishnaswami Ayyar (1919) 38 M.L.J. 324 the foundation of the Claim is that the defendant procured a seizure of the property under a perfectly legal process but by a misrepresentation to the Court that the money, claimed was due by the then defendant. Article 29 is applicable only to those cases in which the seizure is intrinsically wrongful or perhaps to cases, such as the Madras Steam Navigation Co., Ltd. v. Shalimar Works, Ltd. (1915) 42 Cal. 85 where the seizure is made without jurisdiction. In Ram Narain v. Banke Lal (1917) 39 All. 322 where a quantity of grain was attached before judgment in the possession of the defendant, on which a third party successfully claimed his lien for the unpaid purchase-money, it was held that neither Article 29 nor Article 36 of the Indian-Limitation Act was applicable. In. Surajmal Chunilal v. Manekchand Kapurchand (1904) 6 Bom. L.R. 704 Article 36 read with Section 23 of that Act was applied. In Arjan Biswas v. Abdul Biswas A.I.R. 1921 Cal. 774 Article 29 was similarly held to be inapplicable. The damage caused by the attachment complained of would have been negligible but for the continuance of the attachment and the detention of the property attached awaiting the final determination of the suit. The complaint of the plaintiff is that the attachment led to the loss of profits and the death of one of the animals attached and whether Article 49 or Article 36 read with Section 23 is applied the suit is within time.
7. The appeal is therefore allowed and the decree of the Court below set aside and the suit remanded to the Court of first instance with a direction to re-instate it under its original number and to dispose of it after determining the other points involved therein in the manner required by law.
8. The costs here and hitherto will abide the result, including fees in this Court ort the higher scale.