Skip to content


Mahomed Anwarul Huq Sahib and anr. Vs. M. A. Srinivasa Iyengar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported inAIR1927Mad353; 95Ind.Cas.630; 95Ind.Cas.630
AppellantMahomed Anwarul Huq Sahib and anr.
RespondentM. A. Srinivasa Iyengar and ors.
Excerpt:
civil procedure code (act v of 1908), section 144, order xxi, rule 89 - restitution--wrongful attachment of judgment-debtor's property--order dismissing claim petition, reversal of, on appeal--private sale by judgment-debtor--court sale, setting aside of--restitution, application for, for loss on account of private sale-damages for wrongful attachment, whether claimable. - .....are very remote and cannot be said to follow from the act of the respondent.2. in regard to the mesne profits claimed, there is no allegation in the petition that the respondent took possession of the property and it is very improbable that he was in possession because the sale was set aside before the time elapsed for confirmation.3. in those circumstances, we do not think that there is any ground for the contention that the appellant is entitled to mesne profits.4. a third claim was advanced before us and it is this. it is said that for wrongful attachment the appellants are entitled to some damages. in our view such damages do not come within the purview of section 144. sub-section 2 clearly states that it is not open to a party to institute a suit for purpose of obtaining any.....
Judgment:

1. Into the very intricate details of this litigation it is unnecessary to enter. The facts are clearly set forth in the petition filed in the lower Court by the present appellants dated 11th April 1921. The short question to be decided in this appeal is whether the alleged loss incurred by the appellants by reason of the private sale of the property effected by them is a loss that can be made good, by an order under Section 144, C. P. C. The appellants were not under any legal obligation to pay the amount into Court. As a matter of abundant caution, they sold the property by private contract, raised money and paid it into Court under Order XXI, Rule 89. They deposited the amount on the footing that they were likely to lose the appeal which was then pending. If they were successful they would be entitled to get the property back without any payment into Court. The damages, therefore, that are claimed are very remote and cannot be said to follow from the act of the respondent.

2. In regard to the mesne profits claimed, there is no allegation in the petition that the respondent took possession of the property and it is very improbable that he was in possession because the sale was set aside before the time elapsed for confirmation.

3. In those circumstances, we do not think that there is any ground for the contention that the appellant is entitled to mesne profits.

4. A third claim was advanced before us and it is this. It is said that for wrongful attachment the appellants are entitled to some damages. In our view such damages do not come within the purview of Section 144. Sub-section 2 clearly states that it is not open to a party to institute a suit for purpose of obtaining any restitution which could be obtained by application under sub s 1. It is impossible to uphold the contention that in respect of damages for wrongful attachment, a separate suit will not lie.

5. The result is that the appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //