Skip to content


Ananda Chandra Dutta and ors. Vs. Shariatulla Fakir and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal92
AppellantAnanda Chandra Dutta and ors.
RespondentShariatulla Fakir and anr.
Cases ReferredNarahari Ayyar v. Vaithinatha Ayyar
Excerpt:
- .....the plaintiffs, the petitioners in the application on which this rule was granted, under order 38, rule 5, civil p. c, for attachment of certain moveable properties belonging to the defendants in the suit, opposite party in this rule. an order was made by the court on that application, directing a conditional attachment of some items of moveable property, and an attachment as contemplated by order 38, rule 5 (1) followed. on security being furnished, the properties were released from attachment, and the conditional order was withdrawn. the application under section 95 which is the subject-matter of the case before this court was made by the defendant in the suit after final disposal of the small cause court suit against him, and the amount of rs. 1,000 was claimed as compensation on the.....
Judgment:

Guha, J.

1. This rule is directed against an order passed by the Subordinate Judge, Bogra, on an application under Section 95, Civil P. C, for compensation for obtaining attachment of the applicants' property on insufficient grounds. The facts of the case have bean set out in the judgment of the lower Court, and it is not necessary to refer to them in detail. The attachment complained of was made on 28th August 1929, in the course of a Small Cause Court suit; and it would appear that on the day that the plaint in the suit was filed, an application was made by the plaintiffs, the petitioners in the application on which this rule was granted, under Order 38, Rule 5, Civil P. C, for attachment of certain moveable properties belonging to the defendants in the suit, opposite party in this rule. An order was made by the Court on that application, directing a conditional attachment of some items of moveable property, and an attachment as contemplated by Order 38, Rule 5 (1) followed. On security being furnished, the properties were released from attachment, and the conditional order was withdrawn. The application under Section 95 which is the subject-matter of the case before this Court was made by the defendant in the suit after final disposal of the Small Cause Court suit against him, and the amount of Rs. 1,000 was claimed as compensation on the ground that the applicants had suffered loss to that extent by virtue of the attachment which was made on insufficient grounds and with a view to harass the applicants.

2. The learned Subordinate Judge before whom the application under Section 95, Civil P. C, was made, decided the case before him in favour of the applicants, and by allowing the application, has directed that the petitioner in this Court will pay Rs. 100, as compensation to the applicants.

3. The substantial question raised in support of this Rule, in fact the only ground that could be urged as a ground for revision in view of the decision of the lower Court on the merits of the case, based upon findings arrived at on the evidence before it, was that as no final order of attachment before judgment was passed, but there was a conditional order of attachment only, which was withdrawn under Order 38, Rule 6 (2), the Court below had no jurisdiction to grant compensation under Section 95, Civil P.C. In my judgment the contention thus raised by the learned advocate for the petitioner cannot be given effect to. I am clearly of opinion that the provisions contained in Section 95, Civil P.C., are wide enough to in-elude conditional attachments improperly ordered; and I have no hesitation in agreeing with the view expressed by the learned Judges of the Madras High Court in the case of Narahari Ayyar v. Vaithinatha Ayyar [l919] 49 I.C. 86 that there is nothing in the language of Section 95 which excludes conditional attachments of the class contemplated by Order 38, Rule 5 (3), from its operation.

4. The rule is accordingly discharged and the decision of the Court below is affirmed with costs. The hearing fee in this rule is assessed at two gold mohurs.


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