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P. Kanthammal Vs. D.S. Rajalakshmi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberLatters Patent Appeal No. 115 of 1960
Judge
Reported inAIR1963Mad412; (1963)1MLJ168
ActsCode of Civil Procedure (CPC) , 1908 - Sections 95 and 95(1)
AppellantP. Kanthammal
RespondentD.S. Rajalakshmi
Appellant AdvocateT.R. Srinivasa Iyergar, Adv.
Respondent AdvocateM.P. Subramaniam, Adv.
DispositionAppeal dismissed
Cases ReferredKhalilur Rahman v. Sayed Hussain
Excerpt:
- - it has also been found that it was at the instance of the appellant, the respondent instituted a suit on the promissory note impleading the appellant as well as kuppuswami chetti. we consider it unnecessary to go into the question of limitation, as we are satisfied that the appellant will have no sustainable claim under section 95 of the c......the suit at all, for by reason of the payment to ispahani, the original payee under the promissory note, the promissory note should be deemed to have been discharged. the suit was filed by reason of a conspiracy between the appellant and the respondent who were then sailing together, with a view to collect the money from kuppuswami chetti, the other maker of the promissory note. can such a suit against the appellant, (who was the first defendant therein) be regarded as properly instituted. from the findings of the courts which have become final, it is clear that the appellant herself was responsible for the suit against herself. that would be sufficient to constitute a reasonable ground for instituting the suit as nobody could help the appellant from instituting an improper suit against.....
Judgment:

Ramachandra Iyer, C.J.

1. This appeal, which is directed against the judgment of Balakrishna Aiyar, J. arises out of proceedings instituted by the appellant under Section. 95, C. P. Code, for compensation against the respondent, for obtaining an order for attachment before judgment on insufficient grounds. The judgment of the learned Judge is reported in Kanthammal v. Rajalakshmi, : AIR1961Mad352 . The facts giving rise to the appeal are these :

2. The appellant Kinthammal and another person Kuppuswami Chetti borrowed certain money from one Ispahani in the year 1947 and executed a promissory note in respect of that liability. Ispahani assigned the promissory note to Raja-lakshmi, the respondent herein hut it is now round that it was Kanthammal's money that was utilised for obtaining the assignment in her favour and the latter was in effect a benamidar for Kanthammal. Evidently, Kanthammal wanted not to have the promissory note discharged by payment and with a view to enforce the same against her co-debtor Kuppuswami Chetti, she adopted the device of obtaining an assignment of the promissory note in favour of the respondent. It has also been found that it was at the instance of the appellant, the respondent instituted a suit on the promissory note impleading the appellant as well as Kuppuswami Chetti. That suit, which was originally filed in this Court as C. S. No. 64 of 1951 was later transferred to the City Civil Court and registered there as O. S. No. 1694 of 1955. While the suit was pending in this Court, the respondent applied for attachment before judgment of certain moneys in deposit to the credit of Kanthammal in another suit. This conduct of the respondent is no doubt strange, for, as we stated earlier, she was only the alter ego of the appellant so far as that claim was concerned. It has been found by the learned Judge that the application for attachment before judgment was the result of misunderstandings which ensued between the appellant and the respondent subsequent to the institution of the suit. But that is by the way.

On 5-3-1952, there was an ex parte order for attachment. The appellant thereupon applied to this Court to have the attachment vacated. She then put forward her story in regard to the assignment of the promissory note and also that the suit by the respondent could not be sustained against her. Ramaswami, J. before whom the application for attachment before judgment came up for final orders, made absolute the interim order on the ground that there were sufficient grounds for the attachment. This order of the learned Judge is dated 29-1-1954. The suit, which was later transferred to the City Civil Court was disposed of on 1-11-1955, by which decision, the suit, so far as it Was laid against the appellant, was dismissed; but there was a decree against Kuppuswami Chetti. Soon after the disposal of the suit, sometime in June 1956, the appellant filed the application out of which this appeal arises for compensation in respect of the wrongful attachment obtained by the respondent in regard to the moneys belonging to the appellant which were then in Court deposit, she having been deprived of the use of the money. This application was dismissed by the trial judge the same has been upheld by Balakrishna Aiyar, J. on a question of limitation. The learned Judge was of the view that as the application was not filed within three years of the date of the obtaining of the order of attachment before judgment, it should he held to be barred by Article 181 of the Limitation Act.

3. In this appeal, the appellant contests the correctness of the judgment on the ground that the true starting point for limitation under Article 181 for application of this kind would be the date of disposal of the main suit and not the date on which the order for attachment before judgment was obtained. We consider it unnecessary to go into the question of limitation, as we are satisfied that the appellant will have no sustainable claim under Section 95 of the C. P. C. That section provides for compensation for procuring attachment on insufficient grounds. In the present case, although there was an interim order directing attachment before judgment of the moneys belonging to the appellant, notice of such interim order and of the application for attachment before judgment was later given to the appellant. She contested the application, but her objections were overruled by Ramaswami, J. and the attachment was made absolute. That would mean that as; between the parties to the application, the Court had held that the attachment was procured on sufficient grounds. That finding would disentitle the appellant to any damages or compensation under Section 95.

4. But Balakrishna Aiyar, J. did not accept the judgment of Ramaswami, J. as finally concluding the question of the sufficiency of the grounds for attachment, as he was of opinion that the learned Judge had not before him the facts that were subsequently found by the City Civil Court in its judgment in the suit. In short, the view taken by the learned Judge was that the sufficiency or otherwise of the grounds for attachment would have to be judged not on the basis of the order making the attachment, albeit such an order might be on contest. That this view cannot be supported is clear from the judgment of a Bench of this Court in Khalilur Rahman v. Sayed Hussain, : AIR1961Mad220 , where it was held that where an order for attachment had been made absolute after hearing parties, it would mean that according to the Court the application for attachment was made on sufficient grounds, and if that order had become final, it would not be open to the same Court to come to a contrary conclusion on subsequent application under Section 95, C. P. C. In our opinion, the judgment of the Bench referred to above is decisive of the question before us. The appellant's application under Section 95(1) Sub-clause (a) cannot, therefore, be sustained.

5. The question then is whether it would come under Clause (b) of that Sub-section. That contemplates compensation being granted in a case of attachment being effected in respect of a suit which ultimately fails and it appears to the Court that there was no reasonable or probable ground for instituting the same. In the present case, it is true there was no ground for instituting the suit at all, for by reason of the payment to Ispahani, the original payee under the promissory note, the promissory note should be deemed to have been discharged. The suit was filed by reason of a conspiracy between the appellant and the respondent who were then sailing together, with a view to collect the money from Kuppuswami Chetti, the other maker of the promissory note. Can such a suit against the appellant, (who was the first defendant therein) be regarded as properly instituted. From the findings of the Courts which have become final, it is clear that the appellant herself was responsible for the suit against herself. That would be sufficient to constitute a reasonable ground for instituting the suit as nobody could help the appellant from instituting an improper suit against herself. We are of opinion that Clause (b) of Section 95(1) of the Civil Procedure Code will not apply to this case either.

6. It follows that the claim for compensation under Section 95, C. P. C. cannot lie. The appeal fails and is dismissed with costs.


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