1. We accept the finding that plaintiff's claim to damages in the prior proceedings does not disable him from suing. It is a sufficient reason for doing so that the claim was not made, as Section 95 C.P.C, requires, at the stage at which either of the conditions postulated by that section had been fulfilled but in an anomalous manner not contemplated by law in an application at the close of plaintiff's counter-affidavit disputing the propriety of the attachment before judgment and therefore at a stage at which the Court was not called on to deal with it and could not legally have done so.
2. The appeal is then argued with reference to limitation, plaintiff contending for the application of Article 36 or 49, Schedule I, Limitation Act and defendant for Article No. 29. In the lower courts it does not seem to have been noticed that damages were claimed under two headings, firstly on account of injury to plaintiff's stock in trade caused by the persons, who made the attachment before judgment treading on it and secondly on account of the sale of the goods attached by the Court at a low price and the injury to his trade and reputation consequent on the attachment itself. The former cause of action is clearly covered by Article No. 36 and only the latter calls for further discussion. Article 49 may be dismissed from consideration at once, since this portion of the suit is not for specific moveable property or compensation for its conversion or for injury to it inflicted by the defendant.
3. The foundation of the claim is in fact that defendant procured a seizure of the property under a perfectly legal process, but by misrepresentations to the Court; and the question is whether this seizure should be regarded as wrongful, because it was obtained by misrepresentation, and Article No. 29 should be applied or whether the misrepresentation should be regarded as the tort complained of with reference to Article No. 36, Article No. 29 being restricted to cases, in which the seizure is intrinsically wrongful, as for instance when it is made without jurisdiction. The Lower Appellate Court has taken the former view, relying on Manavikraman v. Avisilan Koya I.L.R. (1895) Mad. 80 and that case has never been overruled and was distinguished in the first of the series of cases reliedon by defendant on the ground indicated above. In each of these cases, Murugesa Mudaliar v. Jaitaram Davey I.L.R. (1900) Mad 621 Multan Chand Kanyalal v. Bank of Madras I.L.R. (1904) Mad. 346 Narasimha Rao v. Ganga Raju I.L.R. (1908) Mad 431 Pandiri Veeranna v. Mandavilli Subba Row : (1916)31MLJ257 and Ram Narain v. Umrao Singh I.L.R. (1907) All. 615 the plaintiff, whose property was in question, was a stranger to the proceedings, in which the legal process had issued, and, if they contain some expressions consistent with the present defendant's contention, that may be because the argument did not relate to it, but to other points, such as the meaning of 'seizure' or the date on which the cause of action under Article 29 arose. Reference has also been made to Madras Steam Navigation Company Ld. v. Shalimar Works Ld. I.L.R. (1915) Cal 85 but the portion of the judgment dealing with limitation was obiter and proceeded, it is to be presumed, on the plaint allegation that the seizure was made without jurisdiction. In these circumstances there is no reason for regarding the authority of Manavikrama v. Avisilan Koya I.L.R. (1895) Mad. 80 as impaired or for dissent from the Lower Appellate Court's decision.
4. The Appeal Against Order is dismissed, except as regards the claim to damages on account of injury to plaintiff's stock in trade in the course of the attachment. As regards it the appeal is alloyed, the decision of the lower Courts being set aside and the suit being remanded to the District Munsif for re-admission and disposal with reference to this part of the claim in the light of the foregoing. The District Munsif will provide for-costs in all Courts, which should follow the result of each part of the claim, in his decree.