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The Pannaji Devi Chand, a Marwadi Firm and Company, Consisting of the Following Partners, Punnamchand and ors. Vs. the Firm of Senaji Kapur Chand - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1930Mad635; (1930)59MLJ859
AppellantThe Pannaji Devi Chand, a Marwadi Firm and Company, Consisting of the Following Partners, Punnamchan
RespondentThe Firm of Senaji Kapur Chand
Cases ReferredIn Namsimha Rao v. Gangaraju I.L.R.
Excerpt:
- - the subordinate tudge after hearing the parties confirmed the attachment before judgment on the 21st of april, 1920, and ordered the plaintiffs to give security on failure of which the attachment was to continue. under section 9 when once time has begun to run, no subsequent disability or inability to sue stops it and none of the sections in part iii of the limitation act relating to computation of period of limitation have any application to cases like the present. 11 may be distinguished on the ground that, in that case, the wrong complained of was the institution of a suit without reasonable grounds followed by an attachment of the goods of the defendant in the suit ;whereas in the present case the goods belonged to a person who was not a party to the suit in which the.....kumaraswami sastri, j.1. defendants are the appellants. this appeal arises out of a suit filed by the plaintiff firm against the defendant firm claiming a sum of rs. 10,000 as damages which the plaintiffs alleged they sustained by reason of the defendants having wrongfully attached before judgment the properties in the defendant firm.2. the plaintiffs and the defendants were merchants who were carrying on business in partnership. the plaintiffs were carrying on business at bellary and the defendants were carrying on business at gadag. it is alleged that the plaintiffs filed a suit in the bellary district court for winding up the business and for taking accounts. the defendants brought a suit against the plaintiffs and two other firms in the court of the 1st class subordinate judge of.....
Judgment:

Kumaraswami Sastri, J.

1. Defendants are the appellants. This appeal arises out of a suit filed by the plaintiff firm against the defendant firm claiming a sum of Rs. 10,000 as damages which the plaintiffs alleged they sustained by reason of the defendants having wrongfully attached before judgment the properties in the defendant firm.

2. The plaintiffs and the defendants were merchants who were carrying on business in partnership. The plaintiffs were carrying on business at Bellary and the defendants were carrying on business at Gadag. It is alleged that the plaintiffs filed a suit in the Bellary District Court for winding up the business and for taking accounts. The defendants brought a suit against the plaintiffs and two other firms in the Court of the 1st Class Subordinate Judge of Dharwar for a breach of contract claiming Rs. three lakhs twelve thousand odd. The defendants filed an affidavit on the 30th of March, 1920, and applied for attachment before judgment of certain properties of the plaintiffs in Bellary and obtained a conditional order. The Subordinate Tudge after hearing the parties confirmed the attachment before judgment on the 21st of April, 1920, and ordered the plaintiffs to give security on failure of which the attachment was to continue. It is alleged in the plaint that both in getting this order and in carrying out the attachment the defendants were guilty of various acts of misconduct. The plaintiffs appealed to the High Court of Bombay against the order of the Subordinate Judge and the High Court reversed the order of the Subordinate Judge holding that the defendants did not establish any proper grounds for the attachment before judgment. The judgment of the Bombay High Court is reported in Sennaji Kapur Chand v. Pannaji Devichand I.L.R. (1921) B. 431.

3. The defendants filed a written statement stating that they acted bona fide They denied that in carrying out the attachment they acted in any illegal manner as alleged in the plaint. They denied that the plaintiffs were entitled to any damages and stated that the suit was barred by limitation.

4. The Subordinate Judge held that the plaintiffs did not prove the various acts of misconduct alleged in the plaint, but he was of opinion that the plaintiffs were entitled to damages on the ground that the attachment was not obtained bona fide. He observed :

In the result I find that the attachment made from the 10th to 12th April, 1920, was malicious in the sense that it was sought not under an apprehension that the plaintiffs were closing the shop to defeat the debt due to the defendants but in order that it may be easy for the defendants to realisp their moneys in case they obtained a decree

5. As regards damages, he awarded Rs. 3,000 damages and directed the parties to pay and receive proportionate costs. As regards limitation, the point' was considered by the District Judge before the suit was transferred to the Subordinate Judge and the District Judge on the authority of Manavikraman v Avisilan Koya I.L.R. (1895) M 80 : 6M.L.J. 11 was of opinion that, where the moveables of the defendants were attached before judgment, the seizure cannot be regarded as wrongful and that Art 29 did not apply The District Judge applied Article 49 and as the date of the seizure was the 9th of April, 1920, i.e, within three years before the suit he held that the suit was in time The Subordinate Judge said that that ruling concluded the matter but he also added that as it as necessary for the plaintiffs to prove that the prior proceedings terminated in their favour, limitation began to run from that date, that the attachment was a continuing wrong and that Section 23 of the Limitation Act would apply. Hence the appeal.

6. In appeal, it is contended that the suit is barred by limitation and that the Judge was wrong in holding on the facts that the attachment before judgment was obtained maliciously and without reasonable cause and that in any event the damages are excessive

7. As regards limitation, I am of opinion that the suit is barred by limitation The order of the Subordinate Judge of Dharwar was on the 31st of March, 1920, and the attachment is said to have been on the 10th and the 11th of April, 1920 The suit was filed on the 26th of October, 1921. The suit was one for damages for obtaining a wrongful attachment of the properties of the plaintiffs.

8. Art 29 of the Limitation Act runs as follows :

For compensation for wrongful seizure of moveable property under legal process--one year--the date of the seizure

9. It is contended by the appellants that this case falls within Article 29, that the suit is for compensation for wrongful seizure of moveable property under legal process, that the period is one year commencing from the date of the seizure, that according to the allegations in the plaint, the seizure was wrongful from the date when the property was seized, that the fact that it was held to be wrongful by the High Court of Bombay on the 14th of September, 1921, does not convert a proper seizure into an improper seizure and that consequently the date of the order of the High Court of Bombay has nothing to do with limitation. It is also argued that seizure which is wrongful is not a continuing wrong within Article 23 of the Limitation Act.

10. For the respondents it is argued that there is a difference between cases where the property of the defendant is attached and cases where the property of third parties is attached, that Article 29 only applies to cases where the property of third parties is attached, and that if the property of the defendant is attached the proper article would be Article 36, which provides for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not specially provided for by the Limitation Act and a period of two years is prescribed, the period commencing from the date when the malfeasance, misfeasance or nonfeasance takes place or Article 49, which provides for compensation for wrongfully taking or injuring or wrongfully detaining movable property where three years is the period of limitation beginning from the time when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. It is also argued that wrongful attachment is a continuing wrong until the property is released from attachment in which case the suit was not barred by limitation as it is admittedly within one year of the release order of the High Court setting aside the attachment. It is also contended that as in actions for malicious attachment under legal process the termination of the proceedings is necessary, limitation begins to run only from the termination of the proceedings or the period when the proceedings were going on should be excluded in computing the one year.

11. The difficulty of applying either of the Arts. 36 or 49 is that before these articles can be attracted it has to be shown that the specific Article 29 which applies to suits for compensation for wrongful seizure of movable property under legal process is not applicable. I do not think it can be held that wrongful seizure of moveable property is a continuing wrong. No doubt the party is deprived of the possession and use of the property during the period it is taken out of his possession, but it seems to me that that does not make it a continuing wrong within the meaning of Section 23.

12. No authority has been cited for holding that in such actions limitation does not begin to run until the plaintiff obtains a restoration of the property. I do not think the wrongfulness or otherwise of the seizure depends upon the adjudication of the Court on an objection taken by the person whose property is attached. If, unless certain facts are alleged and proved, the attachment is an invasion, the wrongful nature of the attachment does not depend upon the adjudication of the Court on the objection. It is not rightful when the Court makes an order on allegations which are subsequently found to be unproved and become wrongful only when the Court on investigation of the facts holds that the plaintiff had no justification in attaching the properties. It is wrongful ab initio.

13. As regards the argument that there is no cause of action until the attachment has been declared to be wrongful and that the plaintiff must allege and prove the termination of the proceedings in his favour, the effect of upholding this contention would be to read into Article 29 words that are not there. The period of limitation runs from the date of the seizure and not from the date when the seizure is declared wrongful. It should be noted that in other articles where termination of proceedings is necessary to give the plaintiff a cause of -action, the Limitation Act specially provides for that contingency. For example, in Article 19 which refers to compensation for false imprisonment, the period of limitation begins to run from the date when the imprisonment ends. In Article 23 which refers to compensation for malicious prosecution, the period of limitation runs from the date when the plaintiff is acquitted or the prosecution is otherwise terminated. In Article 42 which refers to compensation for injury caused by an injunction wrongfully obtained, the period of limitation is three years commencing from the time when the injunction ceases. The legislature has however in dealing with compensation for wrongful seizure of moveable property under legal process fixed the period as one year from the date of seizure. 1 may also point out that Article 28 which refers to compensation for illegal, irregular or excessive distress gives one year from the date of the distress. Having regard to this marked distinction I do not think I would be justified in reading into Article 29 words which are not there. And even assuming for purposes of argument that it is necessary in case of compensation for wrongful attachment to allege and prove that the attachment proceedings have been terminated in favour of the plaintiff, it is difficult to see how the period during which the proceedings regarding the attachment are alleged to be pending can be excluded. Under Section 9 when once time has begun to run, no subsequent disability or inability to sue stops it and none of the sections in Part III of the Limitation Act relating to computation of period of limitation have any application to cases like the present. 1 find it difficult to see why any distinction should be drawn between cases where the property of the defendant is attached and cases where the property of third parties is attached. Both the cases fall under Article 29. There is wrongful seizure of movable property under legal process and the seizure is no less wrongful because it is the property of the defendant. The distinction to my mind is purely artificial. The hardship is the same.

14. Turning to the authorities, there are no doubt some cases which draw this distinction, but there are other decisions where Article 29 has been applied to cases where the defendant's property has been distrained or attached.

15. In Hughes v. The Chairman of the Municipal Commissioners of Howrah (1873) 19 W.R. 339 the suit was for the recovery of damages on account of a fine imposed by the Municipality of Howrah and the detention of an omnibus. The fine was set aside by the High Court and the detention pronounced to be wrongful. The question was as to when the cause of action arose and as to the period of limitation, the Calcutta Municipal Act giving a period of three months. Sir Richard Couch, C.J., observed:

The cause of action was the seizure of the omnibus, which took place on the 5th of July. Either that seizure was a lawful one by virtue of proceedings to recover the fine which had been legally imposed by the Municipal Commissioner, acting as a Magistrate, or it was a seizure without any justification, in which case there would be a cause of action. The Judge of the Small Cause Court is mistaken in supposing that the cause of action arose upon the order of the 'High Court being made...It is a mistake to suppose, as J observe is often done, that where a proceeding is illegal and may be a cause of action, the cause of action docs not arise until the proceeding has been set aside by the Court. There may be cases in which before an action can be brought it is necessary to have the proceedings set aside but where there is an entire want of jurisdiction, where the alleged wrong-doer is not acting judicially and would have no protection from his judicial capacity, it is not necessary to wait until his illegal and unfounded proceedings are set aside. In this case, if the plaintiff had any cause of action, it accrued upon the seizure of the omnibus, and he was bound to bring his suit within three months from the lime of the seizure. He could not, under the circumstances, treat the continued detention of the omnibus as fresh causes of action from day to day.

16. In Jagjivan Javherdas v. Gulam Jilani Chaudkri I.L.R. (1883) B. 17 it was held that a suit to recover money wrongfully taken under a decree is governed by Article 29 of the Limitation Act of 1877 and that the same article applies to cases where compensation for the loss of interest on the money is claimed. This was a case where the property of the defendant was attached.

17. In Surajmal v. Manekchand (1903) 6 Bom. L.R. 704 the suit was for damages for wrongful attachment and the question was which article was applicable. The property attached was the property of the plaintiff and not the property of a third person. It does not appear from the facts stated in the judgment that there was any actual seizure of the property. There seems to have been only a prohibitory order. Batty, J., in considering the article, applicable observed:

I do not think the present suit can be described without strain of words as one for specific movable property or for compensation for wrongfully taking or detaining the same. Nor can it be said that the rubies in suit were injured. The injury if any was done to the plaintiff by affecting his power of dealing with them. I therefore think Article 36 would govern the case, unless there be any other Article which could apply. Article 29 does not appear to do so, for it implies actual seizure under legal process. The only other Article besides 30 that can be cited as appropriate is Article 12, which relates to suits for compensation for injury caused by an injunction wrongfully obtained. Nandkumar Shaha v. Gaur Shankar (1870) 5 Beng. L.R. App 4 has been cited in this connection; but that case dealt with an injunction under Section 92 of Act VIII of 1859 which corresponds with Section 492 of the present Code rather than with Sections 484, 485, 486 and 268 under which the attachment now in question purports to have been made.

18. In Murugesa Mudaliar v. Jattaram Davy I.L.R. (1900) M. 621 certain properties in the hands of a third person were attached on the 12th of June, 1895. The plaintiff filed a claim which was disallowed. Thereupon he filed a regular suit to establish his right which was decreed in his favour. He then filed a suit in 1899 for recovering damages. The defendants, among other pleas, contended that the suit was barred by limitation. The plaintiff contended that the period of limitation should be calculated from the time when his rights were finally declared by the High Court, or at any rate, that the time occupied in the proceedings connected with the Small Cause Court should be deducted under Section 14 of the Limitation Act. It was held by Sir Arnold White, C.J. and Subramania Aiyar, J., that the suit was barred and that the plaintiff was not entitled to have the time spent in prosecuting the previous suit deducted from the period of limitation. The learned Judges observed:

In our judgment the plaintiff's cause of action accrued on the 12th June, 1895. The present suit was instituted on the 26th April, 1899. Unless, therefore, by virtue of the earlier proceedings taken by the plaintiff he can claim the benefit of Section 14 of the Limitation Act, the question whether the period of limitation is the one year's period prescribed by Article 29 or the three years' period prescribed by Article 49 is immaterial.

19. After holding that the period under Section 14 cannot be excluded, the learned Judges observed:

But it has been argued on behalf of the plaintiff that a distinction must be drawn between a claim for compensation for wrongful seizure of moveable property where the compensation sought is merely the value of the goods seized, in which case it is argued that Article 49 applies, and a claim for compensation by way of damages which are consequential on the wrongful seizure and arc independent of any question of compensation for the value of the goods, in which case it has been argued the period of limitation is one year under Article 29. There is no reason in principle for this distinction and, in our judgment, the legislature never intended that any such distinction should be drawn. Article 29 is quite general in its terms and we think it was intended to apply to all cases where the alleged wrongful seizure was made under legal process. The case of Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 may be distinguished on the ground that, in that case, the wrong complained of was the institution of a suit without reasonable grounds followed by an attachment of the goods of the defendant in the suit ; whereas in the present case the goods belonged to a person who was not a party to the suit in which the attachment was made.

20. In Narasimha Rao v. Gangaraju I.L.R. (1908) M. 431 : 18 M.L.J. 590 it was held by Sir Arnold White, C.J. and Pinhey, J., that Article 29 of the second schedule to the Limitation Act applied to suits for damages for wrongful attachment. This was a case where the goods of a third person were attached. Me preferred a claim which was dismissed but he succeeded in a suit under Section 283 of the Civil Procedure Code. The attachment was on the 10th of December, 1899. The suit was finally decided in plaintiff's favour on the 7th of February, 1903, and the suit for damages was instituted in 1903. Sir Arnold White, C.J., was of opinion that Article 29 applied and he followed the decision in Murugesa Mudaliar v. Jattaram Davy I.L.R. (1900) M. 621. The learned Chief Justice observed:

The Lower Courts have dealt with the case on the footing that the attached property was moveable property and I deal with the case on the same footing. I am of opinion that the appropriate article is Article 29, since this is the only article which refers specifically to wrongful seizure under legal process. This was the view taken by this Court in Murugesa Mudaliar v. Jattaram Davy I.L.R. (1900) M. 621. I do not think this article should be, construed as limited to claims for consequential damages and as not applicable where the plaintiff seeks only to recover the value of property seized, or the sale-proceeds, if the property has been sold. This is obviously not the sense in which the word is used in Arts. 30 and 31, and I do not see why it should be construed in this restricted sense in Article 29. If Article 29 applies, the law is express and the time is one year from the date of the seizure. No doubt Section 283 of the Code makes provision for a special procedure whereby a claimant to property which has been seized in execution may establish his right, but I fail to see how the provisions of this section can have the effect of postponing the time when limitation begins to run, or suspending the time which has begun to run, when the Limitation Act makes express provision in the matter. Further I can see no ground for holding that time does not run so long as the property remains in custodian legist. The damage to the plaintiff is the seizure of his property. True, he may eventually succeed in showing the property is his and in the meantime the property is safe, but he is none the less damaged by being deprived of the enjoyment of his own property.

21. Sankaran Nair, J., was of opinion that so long as the property remained in the custody of the Court the plaintiff cannot be said to have lost it and is therefore not entitled to any compensation for its loss, and that Article 29 does not apply. He was of opinion that Article 62 or Article 120 applied. With this difference of opinion the matter came before Pinhey, J., who was of opinion that Article 29 applied to the case. The learned Judge observed:

If the seizure was not wrongful there was nothing wrongful in the payment It is conceded that the seizure was wrongful. This is not a continuing wrong. Later manifestations of the original damage done and consequent upon the injury originally sustained do not give rise to a new cause of action. The cause of action therefore was the original seizure and time began to run from that date. The article of Schedule II of the Limitation Act that governs the case would appear to be either Article 29 or Article 49.

22. After referring to the view of the learned Chief Justice that the distinction between Alt. 29 and Article 49 is that the former article applies to a case of wrongful seizure made under legal process, whereas the latter applies when the wrongful seizure is made by a private person, the learned Judge observed:

There is much to be said in support of this view, but it seems to me unnecessary, now, to decide which of the two articles applies, for the suit is admittedly barred whichever article is applied, if the wrongful seizure is taken as the starting point for limitation, and no allowance is made for the time spent in litigating the title under Section 283, Code of Civil Procedure.

23. This case seems to me to be authority for two propositions:

(1) That the starting point for limitation in case of wrongful seizure of goods under legal process is the wrongful seizure and not when the plaintiff obtains a declaration of his rights as to the property seized; and

(2) That the time spent in the previous litigation cannot be excluded in computing the period of limitation.

24. Having regard to the reasoning of the learned Chief Justice and Pinhey, J., nothing turns on the fact that the property attached in the present case was the property of a third person and not the property of the plaintiff.

25. Madras Steam Navigation Co., Ltd. v. Shalimar Works, Ltd. I.L.R. (1914) C. 85 was a case where the property of the plaintiff was attached. The suit was for damages. It was held that a suit for damages for wrongful seizure under legal process was governed by Article 29 of the Limitation Act.

26. In this case, the plaintiff was a Company carrying on business in Calcutta and certain repairs to a steamer owned by the Company were carried out by the defendants. The defendants filed a suit for the recovery of the money due to them and the ship was attached on the 4th of June, 1910. The suit was dismissed for want of jurisdiction and the ship was released from attachment on the 31st of January, 1912. The suit for damages for the wrongful attachment of the steamer was filed on the 4th of June, 1912. Then the question arose as to whether the suit was barred by limitation. Jenkins, C.J., and Stephen, J., held that the suit was barred. As regards limitation, the learned Chief Justice after holding that the attachment cannot be said to be a nullity owing to want of jurisdiction to try the suit observed:

It has been further contended that as this was a trespass to goods, Article 36 should be applied ; but Article 29 is specific and fits the case, and it is a rule of construction of long application that a general article does not govern where there is a particular article which covers the case. Nor do T think can Article 49 be treated as governing this case rather than Article 29. It was the seizure, if wrongful, that was the cause of action and the plaintiff cannot treat the suit as one for trespass apart from the seizure for the purpose of evading Article 29. The conclusion then to which I come is, that this suit as framed is based on malice or its equivalent, that in the absence of proof of malice or its equivalent the suit if treated as one for trespass will not lie in the circumstances of this case; and that if such a suit did lie it would fall under Article 29 and would be barred.

27. In Yellammal v. Ayyappa Naick I.L.R. (1914) M. 972 : 26 M.L.J. 166 it was held by a Full Bench of this Court that in order to attract the provisions of Article 29 there should be actual seizure and that neither attachment of a debt nor voluntary payment of it into Court would constitute seizure of movable property under legal process within the meaning of Article 29 of the Limitation Act.

28. In Pandiri Veernna v. Mandavilli Subba Rao (1915) 31 M.L.J. 257 movables already attached and seized at the instance of A were further attached 'by the issue of a prohibitory order at the instance of the defendant. A suit for damages was filed against the defendant who further attached the properties and it was held that a suit for damages for compensation for such attachment was governed by Article 29 or 36 of the Limitation Act and not by Arts. 42, 49 or 120. In dealing with the second attachment which was admittedly not by seizure, Sadasiva Aiyar, J., referred to Yellammal v. Ayyappa Naick (1914) T.L.R. 38 M 972 : 26 M.L.T. 166 and his view seems to be that if there was actual seizure Article 29 would apply. He was also of opinion that if there was actual seizure there was no continuing wrong.

29. In Ram Narain v. Umrao Singh (1907) T.L.R. 29 A. 615 it was held that Article 29 was the article to be applied to a suit for damages on account of an unlawful attachment before judgment of a shop belonging to the plaintiff, and that the attachment was not a continuing wrong within the meaning of Section 23 of the Limitation Act.

30. I may in this connection refer to Sarat Kamini Dasi v. Nagendra Nath Pal (1925) 29 C.W.N. 973 where the question arose whether Article 109 could be applied to cases where a mortgage sale which was held on the 6th of May, 1913, was not confirmed till the 28th of January, 1914, owing to an infructuous application to set it aside and a suit was filed on the 16th of September, 1916, by the auction purchaser to recover sums realised by the defendant as rents from the tenants of the land. It was held that under Article 109 limitation began to run from the date of the receipt of the rents and that the action was barred. In dealing with Article 109, Mukerji, J., observed:

A careful study of the third column of the schedule reveals an outstanding fact which cannot be ignored, namely, that the starting point of limitation docs not always synchronise with the cause of action; in many cases it does, but in others it dates from some specified events which again arc either anterior or posterior to the accrual of the cause of action.

31. The learned Judge after referring to all the authorities and to the argument as regards suspension or extension of time observed:

In applying the principle of limitation, the Indian Courts are not permitted to travel beyond the articles and the exceptions and provisos ombodied in the Act itself; and that apart from the provisions of the Act itself there is no principle which can legitimately be invoked to add (o or supplement its provisions.

32. The argument that there is a difference between cases where the property attached belongs to the defendant and cases where the property attached belongs to a third party is based upon the decisions in Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 Arjun v. Abdul (1921) 35 C.L.J. 480 Manga v. Changa Mal (1924) 22 All. L.J. 977 and Sokkalingam Chetti v. Krishwaswami Aiyar (1919) 38 M.L.J. 324.

33. I can find no principle on which a difference should be made whether the attachment was of the defendant's property or the property of a third person. And Mr. Sambasiva Rao for the respondents is unable to point to any ground on which such a distinction can be based.

34. In Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 the suit was in respect of timber attached before judgment in November, 1888. The suit was dismissed in October, 1889 and an appeal by the plaintiff was dismissed in July, 1890. The defendant in that suit filed a suit in September, 1892, against the plaintiff who obtained the attachment for damages occasioned by the attachment before judgment. The case was one where the property was claimed by two persons and for the purpose of preserving the property, the property was attached by the Court. But that makes no difference in principle. The learned Judges thought that Article 36 applied and that the suit was barred by limitation. In dealing with the contention that Article 29 would apply, the learned Judges observed:

We agree with them (the Courts below) that Article 29 does not apply since this is not a rase of wrongful seizure, but it is argued for the appellant that the rase falls under Art 36 and that the suit should be regarded as one for misfeasance independent of contract, and that it falls under the description of a tort for which a limitation of two years is generally provided See the judgment of Farran, J, in Essoo Bhayaji The Steamship 'Savitri I.L.R. (1886) B. 133

35. After discussing the scope of Article 49 the learned Judges thought that Article 36 should be applied.

36. In Sokkalingam Chetti v. Krishnaswami Aiyar (1919) 38 M.L.J. 324 the learned Judges draw a distinction between cases where the property of a third person is attached and cases where the property of the defendant is attached, and were of opinion that Article 29 of the Limitation Act was restricted to cases in which the seizure is intrinsically wrongful but did not apply to cases where the foundation of the claim is that the defendant procured the seizure of the plaintiff's property under a perfectly legal process but by misrepresentation to the Court. They think that Article 36 would apply in cases where the property attached belongs to the defendant and distinguish Murugesa Mudaliar v. Jataram Davy I.L.R. (1900) M. 621 Multan Chand Kanyalal v. Bank of Madras I.L.R. (1903) M. 346 Narasimlia Rao v. Gangaraju I.L.R. (1908) M. 431 : 18 M.L.J. 590 Pandiri Veeranna v. Mandavilli Subba Rao (1915) 31 M.L.J. 257 and Ram Narain v. Umrao Singh I.L.R. (1907) A. 615 on that ground. As regards the decision in Madras Steam Navigation Co., Ltd. v. Shalimar Works, Ltd. I.L.R. (1914) C. 85 they think that the observations are obiter. With all respect, the case in Madras Steam Navigation Co., Ltd. v. Shalimar Works, Ltd.9, which is a high authority of Sir Lawrence Jenkins, C.J., discusses all aspects of the matter.

37. In Arjun v. Abdul (1921) 35 C.L.J. 480 the learned Judges held that a seizure cannot be said to be wrongful except where the writ was without jurisdiction or where the writ was executed against a person who was no party to the decree and where the goods were outside the scope of the suit. The learned Judges observed:

In the present case the writ was issued by the Court and prima facie it was not a wrongful seizure. The writ was not without jurisdiction as the Court had jurisdiction over the subject-matter, nor was the writ executed against a person who was no parly to the decree, nor with respect to goods outside the scope of the writ. In these circumstances, we think that Article 29 is inapplicable to the case. This view is supported by the cases of Manawkraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 and Sokkalingam Chetty v. Krishnaswami Aiyar (1919) 38 M.L.J. 324.

39. Then they distinguish the other cases on the ground that the writ was issued against a stranger. As regards the Madras Steam Navigation Co., Ltd. v. Shalimar Works, Ltd. I.L.R. (1914) C. 85 they think that the observations are obiter. This decision, with all respect, gives no reason why there should be this distinction drawn; it simply purports to follow Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 and Sokkalingum Chetty v. Krishnaswami Aiyar (1919) 38 M.L.J. 324.

40. In Manga v. Changa Mal (1924) 22 A.L.J. 977 it was held that Article 29 applied to a suit for compensation for wrongful seizure of movable property and that there could be no wrongful seizure because the attachment was made under legal process. The learned Judges thought that Article 29 would apply only in cases where the seizure was without jurisdiction.

41. As observed in Hughes v. The Chairman of the Municipal Comingssioners of Howrah (1873) 19 W.R. 339 and the other cases I have referred to, a seizure by the plaintiff on insufficient grounds is wrongful ab initio and cannot be said to become wrongful only when the Court adjudicates on the matter. The balance of authority is in favour of the view that Article 29 would apply both to cases of seizure under orders passed by a Court without jurisdiction and to cases of seizure under orders passed by a Court having jurisdiction but on insufficient grounds. In fact in all the Madras cases referred to where it was held that Article 29 applied the seizure was by a Court having jurisdiction but on insufficient grounds. And even in Sokkalingam Chetty v. Krishnaswami Aiyar (1919) 38 M.L.J. 324 this distinction was negatived.

42. I am of opinion that Article 29 applies to all cases of attachment before judgment where specific property is seized and the seizure is wrongful either because the Court had no jurisdiction or because the attachment was obtained on insufficient grounds, that it makes no difference whether the property attached belongs to the defendant or to a third party and that we are not at liberty having regard to the plain provisions of the article to read into the third column anything that would make the starting point a different one.

43. In this view it is unnecessary to consider the question as to whether the Court was right in awarding any damages in this case.

44. I would allow the appeal and dismiss the plaintiffs' suit with costs throughout.

Reilly, J.

45. On 30th March, 1920, the defendants obtained from the Subordinate Judge of Dharwar a conditional order against the plaintiffs under R. 5 of Order 38, Code of Civil Procedure, for attachment of moveables before judgment. The attachment was made on 9th, 10th and 11th April, 1920.' On 21st April, 1920, after hearing the plaintiffs, the Subordinate Judge confirmed the attachment. The plaintiffs appealed to the High Court of Bombay, which ordered attachment to be raised as having been obtained by the defendants on insufficient grounds. That order was made on 16th September, 1921. On 26th October, 1921, the plaintiffs instituted this suit for damages on account of the attachment. The question before us is whether the suit is time-barred, having been brought more than a year after the attachment was effected.

46. The defendants, who are the appellants here, contend before us that the suit is covered by Article 29 of Schedule I of the Limitation Act, which runs 'for compensation for wrongful seizure of movable property under legal process'. Taking those words in their plain meaning, they certainly cover the case. Cut it is contended for the plaintiffs that 'wrongful' in this article has something narrower than its ordinary meaning that it refers only to seizures wrongful because made under the order of a Court without jurisdiction in the matter or in respect of the property of a person who is not a party to the proceedings or in excess of the order of the Court. On the face of it that is an arbitrary restriction of the meaning of 'wrongful' in the article. It cannot be denied that, if an attachment before judgment is obtained by misrepresentation or on insufficient grounds, it is wrongful in the ordinary sense of the word. If it were not wrongful, no suit for damages in respect of it would lie, and that is not contended.

47. But it is argued that a restricted and artificial sense has been placed on the word 'wrongful' in Article 29 by judicial interpretation. The cases cited before us to show that are Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 Sokkalingam Chetti v. Krishna-swami Aiyar (1919) 38 M.L.J. 324 Arjun v. Abdul (1921) 35 C.L.J. 480 and Manga v. Changa Mal (1924) 22 A.L.J. 977 The last three of these cases rest on the first. The second rests on the first, the third on the first and second, and the fourth on the first and second and third. But unfortunately there appears to have been some misapprehension about the first case. When we examine that case, we find it was not concerned, as was apparently thought by the learned Judges who referred to it in the later cases, with an attachment of a defendant's property obtained by a plaintiff before judgment under Rule 5 or Rule 6 of Order 38, Code of Civil Procedure, or the corresponding provisions of the previous Code. In that case a janmi in Malabar, the Nilambur Tirumalpad, had sued another janmi, the Manjeri Karanamulpad, and a Mappilla to recover possession of a hill; the Mappilla, claiming to have obtained a lease of the hill from the Karanamulpad, had cut some trees on it; the Tiramulpad, who claimed the trees as his own, obtained an order for the attachment of the logs pending the suit. That attachment was obviously not an attachment of the defendant's property to prevent him from disposing of it or removing it in order to obstruct or delay the plaintiff's remedy in execution if he should get a decree--that is an attachment such as is now made under Order 38, Rule 5 or Rule 6--but an attachment of part of the property in dispute between the parties for its preservation, such as is now made under Order 39, Rule 7. As the learned Judges point out in the opening of their judgment, the Tirumalpad had got the timber attached on the allegation that it was his. He failed in his suit and appeal. Then in the subsequent suit, which came before the High Court in Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 the Mappilla sued him for damages on account of the attachment of the timber, which had been found to be the property of the Mappilla. The learned Judges eventually found on second appeal that the Mappilla's suit for damages was time barred ; but incidentally they remarked that the attachment was not a case of 'wrongful seizure' within the meaning of Article 29. It is not necessary to discuss now whether that view was correct. But obviously that case, when examined, is no authority for the proposition that an entirely different kind of attachment, an attachment of a defendant's own admitted property, obtained before judgment by misrepresentation or on insufficient grounds, is not a wrongful seizure within the meaning of Article 29. The three subsequent cases, which I have mentioned and in which it has been assumed that Manavikraman v. Avisilan Koya I.L.R. (1895) M. 80 : 6 M.L.J. 11 dealt with the latter kind of attachment, have been built, if I may say so with respect, on a foundation which was not there.

48. On the other hand there are a number of cases which interpret Article 29 according to the plain meaning of the words, e.g., Murgcsa Mudaliar v. Jattaram. Davy I.L.R. (1900) M. 621 Narasimha Rao v. Gangaraju I.L.R. (1908) M. 431 : 18 M.L.J. 590 Jagjivan Javherdas v. Gulam Jilani Chaudhri I.L.R (1883) 8 B. 17 Ram Narain v. Umrao Singh I.L.R. (1907) A. 615 and Madras Steam Navigation Co., Ltd. v. Shalimar Works, Ltd. I.L.R. (1914) C. 85 Jagjivan Javherdas v. Gulam Jilani Chandhri I.L.R. (1883) B. 17 was a case of money wrongly taken in execution. In Murngesa Mudaliar v. Jattaram Davy I.L.R. (1900) M. 621 the property of a third party was attached in execution. In Narasimha Rao v. Gangaraju I.L.R. (1908) M. 431 : 18 M.L.J. 590 and Ram Narain v. Umrao Singh I.L.R. (907) A. 615 the attachment was before judgment; but it was the property, not of the defendant, but of a third party which was attached. But, whether the attachment complained of is made before judgment or in execution, whether the property attached is that of a defendant or of a third party, if it is wrongful, in my opinion we cannot exclude it from the scope of Article 29 unless compelled to do so by clear authority. In Murugesa Mudaliar v. Jattaram Davy I.L.R. (1900) M. 621 it was remarked obiter:

Artirie 29 is quite general in its terms, and we think it was intended to apply (o all cases where the alleged wrongful seizure was made under legal (SIC) cess.

49. In Narasimha Rao v. Gangaraju I.L.R. (1908) M. 431 : 18 M.L.J. 590 where a third party sited to recover the proceeds of his property, which had been wrongfully attached before judgment and sold, though they disagreed on other points, White, C.J., and Sankaran Nair, J., agreed that a suit for damages for wrongful attachment would come within Article 29. In my opinion we are not compelled by authority to put any artificial or strained meaning on the words of Article 29 and that article covers the present suit.

50. But it is contended for the plaintiffs that, even if that article covers the case, the suit was in time because the 'date of seizure' mentioned in that article as the time from which the period begins to run does not; mean in a case like this the date of the actual seizure but the date when the seizure was declared wrongful by a competent Court. In this case that would be the date of the decision of the High Court of Bombay on appeal, vis., 16th September, 1921. But that construction obviously does great violence to the language used in the article. Why should the legislature have said one thing and have meant another, which could have been so easily expressed? If we compare Article 29 with Article 19 or Article 23, it becomes still more difficult to believe that, when the explicit words 'the date of the seizure' were used in Article 29, they can have been intended to mean anything but the date of the actual seizure. The reason for trying to read another meaning into the words of the article is that in some cases, as in this case, there may be hardship because the plaintiff does not get a decision in his favour that the seizure was wrongful until after a year from the date of the seizure has expired. Such cases are unfortunate ; but I do not see how they could justify us in departing from the plain meaning of the words in the article. There was similar hardship in Murugesa Mudaliar v. Jattarcani Davy I.L.R. (1900) M. 621 apart from the. time spent in seeking a wrong remedy, and in Pandiri Veeranna v. Mandavilli Subba Rao (1915) 31 M.L.J. 257 in respect of the attachment at the instance of the 1st defendant in that case; but the learned Judges did not hesitate to apply the article literally on that account. In Namsimha Rao v. Gangaraju I.L.R. (1908) M. 431 : 18 M.L.J. 590 all the learned Judges agreed that under Article 29 time ran from the date of the actual seizure. In my opinion nothing but overwhelming authority or the clearest demonstration that the legislature could not have meant what it said would justify us in reading into the words 'the date of the seizure' in Article 29 the additional words suggested for the plaintiffs. No such justification has been shown. If the period fixed in the article is inconveniently short, that is a matter for the legislature, not' for us, to put right.

51. I agree that the plaintiffs' suit was time-barred under Article 29 and that, therefore, this appeal should be allowed and the plaintiffs' suit dismissed with costs in both Courts.


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