1. C.M.A. No. 404 is an appeal against an order making absolute an attachment before judgment. C.M.A. No. 405 is an appeal against the dismissal of an application under Section 95 of the Civil Procedure Code for compensation for wrongful attachment. The trial Court heard together both the application to vacate the ad interim attachment and the application for compensation. In such circumstances it seems hardly fair to apply as against the appellant the rule embodied in Rama Mudali v. Marappa Goundan (1934) 67 M.L.J. 448 according to which an application for compensation for wrongful attachment would not lie until the attachment itself has been set aside. The trial Court had before it an application to set aside the attachment and abstained from passing orders on it until the hearing of the application for compensation was finished. Similarly in this Court I have before me both an appeal against the order confirming the attachment and an appeal against the dismissal of the application for compensation. Incidentally I may observe with reference to the case just quoted that there is another decision of this Court reported in Palaniandi Moopan v. Pachi Palaniandi Moopan 1931 M.W.N. 956 which takes the contrary view and holds that the passing of an absolute order of attachment is no bar to an application under Section 95 and with all respect to the learned Judge who decided the former case, it does seem to me that the requirements of an application under Section 95 should be based on the language of the section and not on rules obtaining in Common Law with reference to a similar but not identical Common Law remedy. The decision in Rama Mudali v. Marappa Goundan (1934) 67 M.L.J. 448 is based on Lees v. Patterson (1878) 7 Ch. D. 866 which was a case in which damages for the wrongful issue of a writ of ne exeat were refused on the ground that the writ had not been set aside. But it seems to mi that no such preliminary step has been prescribed in Section 95 which alone governs the procedure in a summary application for compensation for wrongful attachment. I doubt whether one would be justified in hedging this remedy round with restrictions which the section itself does not import. In any case, as I have already indicated, when the cancellation of the attachment has been prayed for and orders thereon have been withheld pending an adjudication on the application for compensation, it seems to me unfair to non-suit the applicant under Section 95 for want of a final order on the connected application. I assume therefore that the setting aside of the order of attachment is not an essential preliminary to the grant of compensation.
2. A further question arises whether it is necessary to prove what is commonly known as special damage in order to justify such an order. Section 95 itself uses the words 'reasonable compensation to the defendant for the expense or injury caused to him', and it is argued that the addition of the word 'injury' to the word 'expense' is an indication that the Code contemplates not only what is usually called special damage but also what is usually called general damage. There appears to be some confusion imported into this question by the language of the Bench which decided Manjappa Chettiar v. Ganapathi Gounden : (1911)21MLJ1052 where the learned Judges, while holding that it is not necessary in an action for damages for wrongful attachment to prove pecuniary loss or specific damage to reputation, do seem to treat the general injury caused by unspecific loss of reputation as if it fell within the definition of special damage. I take it that special damage as distinct from general damage means the particular damage which results from the particular circumstances of the case; or when special damage is the gist of the action, it denotes the actual and temporal loss which has in fact occurred. Thus it would not cover compensation for mental anxiety or for general loss of repute but it would cover the medical expense resulting from an actual injury or the loss of a particular contract owing to damage to reputation. The prevailing view in Madras at any rate appears to be that in a suit for damages for illegal attachment it is not necessary to prove more than general damage, e.g., mental pain, general loss of reputation etc. for this, authority is found in Nicholas v. Sivarama Ayyar I.L.R.(1922) 45 Mad. 527 which is later than the apparently conflicting judgments in Manjapp a Chettiar v. Ganapathi Gonnden : (1911)21MLJ1052 and Rama Aiyar v. Govinda Pillai (1915) 30 M.L.J. 180 : I.L.R. 39 Mad. 952. The Calcutta High Court seems to have taken a different view. I have not been referred to any Madras case regarding the nature of damage to be proved in an application for compensation for wrongful attachment under Section 95, Civil Procedure Code. There are decisions Subraya Davay v. Venkatarama Aiyar (1915) 3 L.W. 30 and Arumugam Pillai v. Kadir Mohideen Rowther (1926) 24 L.W. 252 to the effect that there is no necessity to prove special damage when the application is one for compensation for wrongful arrest. That, of course, is not quite the same thing as an application for damages for wrongful attachment, for it has always been held that a wrongful arrest from its very nature causes damage and it would therefore be unnecessary on general principles to require proof of particular damage when once it is established that the liberty of the person had been restrained. In a Calcutta case Chandulal Siraogi v. Puma Chandra Paul 39 C.W.N. 915 it was held that mere allegations of general damage to prestige and general humiliation were not sufficient to support an application under Section 95 in the case of an attachment. But one must approach this decision with some caution in view of the difference of attitude taken by this High Court towards suit for damages for malicious attachment from that taken by the Calcutta High Court. If once it is granted that special damage need not be proved in a suit for damages for wrongful attachment, I see nothing in the language of Section 95 to justify the inference that special damage need be proved in application under Section 95 for a similar relief. The remedy being statutory one is entitled to look to the words of the section itself in order to ascertain whether it is necessary to prove special or particular damage flowing from the attachment. It seems to me that the words 'expense or injury' indicate that either the particular damage upon which a monetary value can obviously be placed or the more general damage which the court endeavours with difficulty to assess in terms of money, is contemplated by the section.
3. Having decided, therefore, that the present application is not bad for want of a previous cancellation of the order; of attachment and that it need not fail for want of any averment of special damage, it remains to consider whether the claim of the appellant is entitled to succeed on the merits.
[His Lordship then summarises and discusses the facts.]
4. On the facts established I am of opinion that the appellant failed to make out the case which it was necessary for him to establish and that the plaintiff (respondent) did succeed in establishing that his application was not made on insufficient grounds. It is true that the affidavit supporting the application was disfigured by inaccuracies and by a vagueness resulting from combining together the financial condition of two separate defendants. At the same time I am not convinced that the respondent had no grounds for making the application and I therefore dismiss both the appeals with costs in C.M.A. No. 405 of 1936.