1. This is an appeal from the judgment of the District Judge of Tanjore on appeal from the judgment of the District Munsif of Tiruvalur in a suit in which the plaintiff claimed damages from the defendant in respect of his action in applying for attachment before judgment and 'coming to attach his moveables.' The District Munsif gave judgment for the plaintiff while the District Judge, holding that there was in fact no attachment, dismissed the suit on the ground that the taking out of notice gave no cause of action.
2. It has been argued before us that this view is incorrect and that, as the District Judge has found that there was no reasonable and proper cause for obtaining an order for attachment arid that it was obtained maliciously, the plaintiff is entitled to recover damages in respect of that order. Great reliance has been placed on the decision of this Court in Nanjappa Chettiar v. Ganapathi Goundan 12 Ind. Cas. 507 That was, however, a case where the attachment had been made and is of no assistance to us in this question. It was argued that the procuring of the order was an abuse of the process of Court and alternatively that, however it may be termed, a suit lies where the application is malicious and without reasonable or probable cause. The first point may be shortly disposed of. Abuse of the process of Court does not mean an improper procuring of the process of Court by the applying of the process of Court in an improper manner and for improper purposes. The nature of this suit is clearly pointed out in Grainger v. Hill 4 Bing. 212 There the defendants being desirous to possess themselves of a ship's register sued out a capias indorsed for bail in a certain sum and sent two Sheriff's officers with the writ to the plaintiff, who was lying ill in bed. The defendants accompanied the Sheriff's officers and told the plaintiff that they had not really come to take him but to get the ship's register; but that if he did not hand over the ship's register or find bail, they must take him. The plaintiff, being unable to procure bail and being much alarmed, gave up the register. The Court held that this was an abuse of the process of Court. Bosanquet, J., puts the matter thus 'This is not an action for a malicious arrest or prosecution, or for maliciously doing that which the law allows to be done: the process was enforced for an ulterior purpose; to obtain property by duress to which the defendants had no right. The action is not for maliciously putting process in force, but for maliciously abusing the process of Court.' And Tindal, C.J., says: 'The complaint of the plaintiff is that the process of the law has been abused to effect an object not within the scope of the process.'
3. The other point is much more difficult. But a careful examination of the judgment in Quartz Hill Gold Mining Co. v. Eyre 11 Q.B.D. 674 leads to the conclusion that the suit will not lie. The allegation is one of malicious civil prosecution and the circumstances under which such a suit will lie are exhaustively considered by the Court of Appeal in that case. The decision was that an action will lie for falsely and maliciously and without reasonable or probable cause presenting a petition under the Companies Acts to wind up a trading company even though no pecuniary loss or special damages be proved, for the presentation of the petition is from its very nature calculated to injure the credit of the company. Lord Justice Bowen in that case starts with this proposition that the bringing of an action, although falsely and maliciously and without reasonable or probable cause, will not support an action by the person so sued. The proposition, to my mind, disposes of the case for reasons which will appear later. He adopts the doctrine of Holt, C.J., in Savez v. Roberts 1 Raym. 374. There are three sorts of damages any one of which would be sufficient to support an action for malicious prosecution, damage to a man's fame, damage to a man's person and damage to a man's property, in that he is forced to expend his money in acquitting himself of the crime of which he is accused. The learned Lord Justice then goes on to point out that although an action does not give rise to an action for malicious prosecution, inasmuch as it does not necessarily or naturally involve damage, there are certain legal proceedings which do necessarily and naturally involve damage and, therefore, do found an action and he places under this head all ordinary indictments for ordinary offences. He then proceeds to consider what other proceedings necessarily involve damage and agrees with the decision in Johnson v. Emerson 6 Ex. Cas. 329 that the false and malicious presentation without reasonable and probable cause of a bankruptcy petition against a trader gave rise to an action for malicious prosecution. He then proceeds to consider the question arising in the suit, whether a petition to wind up a Company maliciously and wrongfully brought does necessarily involve damage just as in the case of a bankruptcy petition, or does not, in which latter case, it would not justify an action for malicious prosecution. He then states that, as a petition to wind up a Company cannot be presented without being advertised in the newspapers, it necessarily follows that the petition must strike a blow at the credit of the Company and thereby necessarily involve damage and decides that the action will lie, for the reason that special damage is involved in the very institution of the proceedings. Brett, M.R. gave judgment to the same effect. This has invariably been followed and has lately been re-affirmed by the Court of Appeal. In Wiffen v. Bailey and Romford Urban District Council (1915) 1 K.B. 600 Lord Justice Buckley says: 'But, as was pointed out by Lord Justice Bowen in Quartz Hill Gold Mining Co. v. Eyre 11 Q.B.D. 674, it is in very few cases that an action for malicious prosecution will lie where the matter is one of civil proceedings.' And the Court held that a complaint under the Public Health Act requiring a house-holder to abate a nuisance by stripping the paper off the wall, etc. was not a proceeding necessarily and naturally involving damage, and, therefore, a suit for damages for malicious prosecution did not lie. Reliance is placed on the decision of the Court of Appeal in Clissold v. Cratchley (1910) 2 K.B. 244. But there the Court based its judgment on the fact that the allegations supported an action for trespass in that the Sheriff's officer levied an execution on the plaintiff's goods at his farm. The case of Quartz Hill Gold Mining Co. v. Eyre 11 Q.B.D. 674 was never referred to and it is clear that no observation in this judgment could have been intended to throw doubt on the earlier decision. In this view of the law how will this action lie? The bringing of the original action thus gives no cause of action however malicious, vide Mohini Mohan Misser v. Surendra Narain Singh 26 Ind. Cas. 206, where this doctrine is affirmed. An exception has been made to this broad rule in cases of bankruptcy petitions and winding-up petitions. But no case has been shown to us where the procuring of the process of Court in interlocutory proceedings has been held to found an action. And I am unable to see on what principle a man is more entitled to damages for the action of a plaintiff in a suit in applying for attachment before judgment, even though maliciously, than he is for the action of the plaintiff in bringing a suit maliciously and without reasonable and probable cause on false allegations of fact. If the original suit is protected it seems to me clear that proceedings in the suit must be protected unless they constitute abuse of the process of the Court. Further, even if there is a difference between the presenting of interlocutory applications and the bringing of a suit, I am unable to see how the making of an application necessarily and naturally involves damage. I cannot see how a man's credit naturally suffers more in the one case than in the other. The decisions as to bankruptcy and winding-up are special cases arising out of the publication of the petitions. There is no such publication in an application for attachment. I cannot but think that it would be most ill-advised to introduce the principle that applications of an interlocutory nature in a suit can found an action, however malicious, An application for discovery may result in far more damage, i.e., damnum to a party to a suit, than the action itself, and for this reason, these applications are frequently taken to the Court of Appeal and have even resulted in settlement of the suit. But it has never been suggested that such an application, however malicious, would found an action. I would, therefore, dismiss this appeal with costs both on the ground that an interlocutory application in a suit does not of itself found an action and also on the ground that damage does not necessarily and naturally flow from such an application. Appeal dismissed with costs.
Sadasiya Aiyar, J.
4. I agree.