1. These two appeals arise out of a suit brought by the plaintiff respondent in the first-mentioned appeal against the Secretary of State for India in Council, Messrs. Ralli Brothers and Barada Prasad Roy Chowdhry, for recovery of possession of certain immoveable property, namely, a garden, with mesne profits. The plaint is not very artistically drawn, but the main allegations on which the suit is based are shortly these: That the property in dispute belongs to the plaintiff, that defendants No. 2, Messrs. Ralli Brothers, having instituted criminal proceedings against defendant No. 3, Barada Prasad Boy Chowdhry, and the accused not having appeared, the property in dispute was, on the 1st of July 1895, attached at the instance of defendants No. 2, under Section. 88 of the Code of Criminal Procedure, as the property of the accused; that the plaintiff was thereby dispossessed from the garden, many of the trees in it have been destroyed for want of proper care, and the garden has remained in the possession of the servants of defendant No. 1, the Secretary of State; and that, notwithstanding that the plaintiff served defendant No. 1 with a notice under Section 424 of the Code of Civil Procedure before bringing this suit, the property in dispute has not been released to her.
2. The defendant No. 1 in his defence alleged that the property in dispute was attached by the Criminal Court at the instance of defendants No. 2, and that the accused Barada Prasad Boy Chowdhry did not appear within the time specified in the proclamation issued against him or
at any time. He also disputed the plaintiff's title to the garden in suit, and he denied his liability generally. The defendants No. 2 denied liability. Defendant No. 3 did nob enter appearance.
3. The First Court gave the plaintiff a decree against defendants NoSection. 1 and 2, and directed that the amount of the mesne profits and damages be ascertained in execution of the decree. Against that decree, defendants 1 and 2 preferred separate appeals. And the Lower Appellate Court has dismissed the appeal of the former and decreed that of the latter.
4. Against this decree of the Lower Appellate Court defendant No. 1 has preferred appeal No. 1164, urging that upon the facts found no case was made out against him, and the plaintiff has preferred appeal No. 1392, in which she urges that upon the facts found the liability of defendants No. 2 was made out,
5. I shall consider these two appeals separately and in the order in which they have been mentioned above.
Appeal No. 1164.
6. In this appeal it is contended by the learned senior Government Pleader on behalf of the appellant that the attachment of the property under Section. 88 of the Code of Criminal Procedure was an act of the Magistrate in the discharge of judicial duty, and no want of good faith being imputed either to the Magistrate or to the Police officers who acted under his orders, both the Magistrate and the Police officers are protected by Act XVIII of 1850; and defendant No. 1 cannot be made liable for mesne profits and damages for the period during which the property was under attachment; and there being nothing to show that defendant No. 1 held-possession of the property, or even that the property had been placed at the disposal of Government under the last paragraph of the section, no liability could attach to defendant No. 1, and there was no cause of action against him. This contention is correct so far as it seeks to show that the Magistrate and the Police officers are protected, and that defendant No. 1 could not be made liable for mesne profits and damages for any period preceding the date on which the property, if it had been the property of the absconding offender, would have come to be at the disposal of Government under Section. 88. But the rest of the contention is in my opinion untenable.
7. There is no dispute now that the property in suit belongs to the plaintiff; and it is admitted that it was attached as the property of defendant No. 3. It is admitted also in the written statement of defendant No. 1 that the accused, defendant No. 3, did not appear within the time specified in the proclamation or at any time subsequently, so that at the date of the filing of the written statement by defendant No. 1, at any rate, the property, if it belonged to defendant No. 3, would have been at the disposal of defendant No. 1 under Section. 88 of the Code of Criminal Procedure. It is true there is neither any finding nor any admission as to whether the time fixed in the proclamation for the appearance of the accused expired before the damage by the destruction of trees was caused, or even before the institution of the case. But the suit was preceded by a notice under Section. 424 of the Civil Procedure Code, pursuant to which the Collector of the District, it is admitted, held an enquiry into the plaintiff's title; but he did not communicate to her the result of the enquiry, nor did he repudiate his connection with the property. Thus when this suit was brought, the property, if it had been rightly attached, would have been either actually at the disposal of Government or likely soon to be at its disposal, and Government not having repudiated its connection with the property, when notice of this suit was given or at any time before, the plaintiff was right in making defendant No. 1 a party to the suit, so that the question of title might be decided in his presence, and possession might be awarded as against him. The release of the property from attachment after the filing of the written statement, and only a few days before judgment was pronounced in plaintiff's favour by the First Court, cannot affect the suit. The defendant No 1 must be liable for mesne profits, and damages in respect of the period subsequent to the date when the property, if rightly attached, would have come to be at the disposal of the Government under Section. 88 of the Criminal Procedure Code; and as the amount of mesne profits and damages has been left by the decree to be ascertained by subsequent proceedings under Section. 212 of the Civil Procedure Code, the date on which the property, if rightly attached, would have come to be at the disposal of Government, and the liability of the defendant No. 1 commenced, will be ascertained in those proceedings, and the amount for which that defendant is liable will be ascertained accordingly.
8. Appeal No. 1164 must therefore be dismissed with costs.
Appeal No. 1392.
9. In this appeal the plaintiff contends that the Court below, upon the facts found, is wrong in exonerating defendants No. 2 from liability. The defendants No. 2 contend that certain members of the firm of Ralli Brothers died since the date of the Lower Appellate decree, and the partnership came to an end under Section. 253, Clause (10) of the Contract Act, and as the persons substituted in the place of the deceased parties are not their legal representatives, the appeal cannot proceed. I do not consider this preliminary objection valid. The operation of Section. 253, Clause 10, is subject to express contract, and the defendants, who have special means of knowledge on the subject, do not shew that there was no contract to the contrary or that the persons substituted are not the proper parties. Turning now to the merits of the appeal, I find that the Court below has exonerated the defendants No. 2 on the authority of Look v. Ashton (1848) 12 Q.B. 871. I am of opinion that that case is inapplicable to a case like the present, in which the fact as found by the Court below is that 'Defendant No. 2, a private prosecutor through legal and other agents, did cause the attachment to be effected.' Upon that state of facts the defendants No. 2 must be held to be liable for damages. The view I take is in accordance with that taken by this Court in Soobjan Beebee v. Shaikh Shuree utoollah (1869) 12 W.R. 329. This appeal must therefore be allowed and defendants No. 2 made liable for mesne profits and damages.
10. The result then is that, subject to the modification as to the time from which the liability of defendant No. 1 should commence, the decree of the First Court will be restored, Appeal No. 1164 being dismissed and Appeal No. 1392 decreed with costs.
11. I concur.