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Hursook Dass Vs. Kishori Mohun Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal696a
AppellantHursook Dass
RespondentKishori Mohun Rai and ors.
Cases ReferredWalker v. Olding
Excerpt:
civil procedure code (act xiv of 1882), sections 278 to 283--claim case--attachment--damages for wrongful attachment. - .....attachment of the 25th of november was an attachment before judgment; and that the value of the goods attached was four or five times as large as the sum for which the rais were bringing their suit. the judgment was not obtained in that suit until the 7th day of may 1884.12. the attachment was clearly a wrongful act on the part of the rais, which deprived the plaintiff of the possession of the goods, and of his power of disposing of them.13. moreover, there was no pretence, so far as i can see, for attaching goods of so large a value; and if in this respect the rais made a mistake in the first instance, they might have rectified it afterwards by relieving some of the goods from attachment. but this they did not do.14. it was suggested by mr. evans that there were other attachments.....
Judgment:

Richard Garth, C.J.

1. It was contended by the appellant's counsel, Mr. Woodroffe, that the learned Judge had altogether misunderstood the nature of this suit; that it was a suit of a peculiar nature brought under Section 2831 of the Civil Procedure Code; and that it was in the nature of an appeal from the decision of the Subordinate Judge.

2. Mr. Woodroffe went so far as to insist that the judgment of the Subordinate Judge, as well as the proceedings in the claim case, were as much the subject of appeal before Mr. Justice Wilson, when he tried this cause, as Mr. Justice Wilson'S judgment, and the proceedings in this case are now before us for the purposes of this appeal.

3. In support of this view, Mr. Woodroffe referred us to the case of Mitchell v. Mathura Dass I.L.R. 8 All. 6 decided by the Privy Council on the 19th of June 1885.

4. The judgment in that case certainly does contain a statement to the effect that a suit under Section 283 is in substance a suit brought to reverse the order in the execution proceedings. But we do not understand that their Lordships intended to lay down any such rule as would support Mr. Woodroffe's contention.

5. The class of suits which are now brought under Section 283 of the Code are no novelty. They were constantly brought under the corresponding section of the Code of 1859; and they are neither described in the Code, nor dealt with in practice, as appeals from the orders of the lower Court. They are brought no doubt for the purpose of establishing rights which have been negatived in the execution proceedings; but they are substantive suits to all intents and purposes; and must be tried like any other suits, subject to the ordinary rules of procedure and evidence.

6. In this case Mr. Woodroffe complains that the judgment in the claim case was not duly considered by Mr. Justice WILSON; it was produced no doubt in Court before the learned Judge; but we do not find that any attempt was made by the defendants to make that judgment evidence, nor do we see (if there had been such an attempt), how the judgment would have been properly receivable.

[The learned Chief Justice here went into the merits of the case, stating that he was of opinion that the plaintiff's story was substantially true; and that he was entitled to recover from the Rai defendants the sums which had been awarded him by the Court below.]

7. As regards the amount awarded to the plaintiff, a point which has been strongly urged upon us is this: that the defendants are not answerable for any depreciation which the goods may have undergone from the time when they were first attached to the time when they were sold by the Alipore Court on the 30th day of June 1884; and, consequently, that the utmost which the plaintiff could be entitled to was the sum for which the goods were then sold.

8. Mr. Evans contended, first, that as the claim made in the Sub-Judge's Court was entirely the act of the plaintiff, the defendants were not answerable for the consequences of any delay which took place in the course of those proceedings.

9. Secondly, that, even assuming the defendants to have been liable in the first instance, they were no longer liable for any depreciation of the property after they had proposed to sell the goods, and the Court at the instance of the plaintiff had refused to order a sale.

10. In support of this contention, the case of Walker v. Olding 10 H. & C. 621 : 32 L.J. Exch. 142 was relied upon as showing that, when the Court had made an order for the sale of goods on an inter pleader issue, the execution creditor, though he should turn out to be a wrong-doer, was not answerable for any loss which might have occurred to the true owner in consequence of the sale.

11. It seems to me that there is no good ground for either of these contentions. It must be borne in mind, in the first place, that the attachment of the 25th of November was an attachment before judgment; and that the value of the goods attached was four or five times as large as the sum for which the Rais were bringing their suit. The judgment was not obtained in that suit until the 7th day of May 1884.

12. The attachment was clearly a wrongful act on the part of the Rais, which deprived the plaintiff of the possession of the goods, and of his power of disposing of them.

13. Moreover, there was no pretence, so far as I can see, for attaching goods of so large a value; and if in this respect the Rais made a mistake in the first instance, they might have rectified it afterwards by relieving some of the goods from attachment. But this they did not do.

14. It was suggested by Mr. Evans that there were other attachments also, made by other creditors of the Deys, upon the same goods. But those attachments were subsequent to that of the Rais; and it is by no means improbable that they were made in consequence of the Rais' attachment. At any rate, the fact that other wrong-doers had also attached the goods can make no difference whatever in the extent of the Rais liability.

15. Then as to the second point it was argued that the plaintiff might have allowed the goods to be sold, When the Rais applied to the Court for that purpose.

16. But the plaintiff was surely justified in refusing to allow his goods to be sold by the Court at what would obviously have been a forced sale, especially considering how large their value was, as compared with the amount of the Rais decree.

17. A wrong-doer, under such circumstances, has no right to dictate to the man whom he has wronged, how the goods, which have been wrongfully seized, should be disposed of. He has no right to say: 'Now, unless you consent that these goods of yours, which I have wrongfully attached, shaft be sold by the Court, you must be answerable for any depreciation which may afterwards occur in the value of them.'

18. If this were the position in which a man, whose goods have been seized in execution, were to be placed by making a claim in the execution proceedings, it would in the generality of cases be the height of folly to make any such claim. The safer course would be to bring a regular suit at once.

19. No authority was cited to us which gives colour to such a proposition; and it seems to me that the argument is quite untenable. The rule in England, to which Mr. Evans referred, and which is illustrated by the case of Walker v. Olding 10 H. & C. 621 : 32 L.J. Exch. 142 does not, in my opinion, assist him.

20. In that case certain goods of a third party had been taken in execution by an execution-creditor. The third party took out an interpleader summons, which was heard, in due course, before the Judge in Chambers, who ordered (as he had power to do) that the goods should be sold and the question as to the ownership tried by an arbitrator.

21. The goods having been found to be the property of the claimant, the latter insisted that the execution creditor ought to pay the loss which he (the claimant) had sustained in consequence of the sale of the goods. But the Court held that he was not entitled to recover that loss up to the time of the sale; the execution creditor would be liable for any depreciation of the goods; but as the sale itself was the act of the Court, the claimant could recover no damage on that account.

22. Then, lastly, it was insisted by Mr. Evans that in this case the plaintiff did eventually consent to the sale. But there really seems to be nothing in this point. The goods eventually were ordered to be sold by the Alipore Court; and all that the plaintiff proposed and consented to, was that they should be sold by his own brokers, Messrs. Landale and Morgan, instead of by the Court, as they were likely in that way to command a better price.

23. Lastly, the appellants say that there is a difficulty in obtaining the price of the goods, Rs. 12,703-12, from the Alipore Court. If there, is any such difficulty, it is one which has clearly not been caused by the plaintiff. The plaintiff is, prima facie, entitled to be paid by the defendants the sum which has been awarded to him by the Court below. On the other hand, the plaintiff is bound to assist the defendants to obtain the Rs. 12,703-12 from the Alipore Court. If the difficulty in obtaining this money arises from causes over which the plaintiff has no control, the defendants must be sufferers.

24. The appeal is dismissed with costs.

Cunningham, J.

25. I concur with the Chief Justice that the original Court was right in holding that the balance of the evidence is in favour of the truth of the plaintiff's story; also that the Court was right in trying the case on the evidence before it, and in declining to take into consideration the order in the claim case, or any part of those proceedings not properly proved in the suit. As to the question of damages, Mr. Evans' main contention was that 'the suit provided for by Section 283 is in its nature distinct from a suit for compensation for irregular seizure, and that in the former suit all that the plaintiff can do is to establish the right which he claims in the property; that the defendant's responsibility ceased either on November 26th when plaintiff made his claim, or on the 28th November when the order for the Nazir to go and make an inventory was passed; that the property being thus in the custody of the Court and the subject of litigation, no subsequent deterioration or loss would give rise to a claim for damages.

26. I do not see that any such restriction of the ordinary rule of law as to damages for wrongful attachment can be supposed to have been intended in the provisions as to claims to attached property in Sections 278 to 2832 of the Code; or that in the suit to which reference is made in Section 283 the plaintiff is not at liberty, besides establishing his right, to claim dam ages for any loss occasioned to him by the defendant's wrongful act in invading it. The previous sections provide a summary procedure in the case of such claims, and Section 283 gives a finality to the order passed, unless it is contested in a suit, which the Limitation Act requires to be brought within a specified period. But there is nothing, in my opinion, in such provisions to limit plaintiff's right to compensation for his loss, or the defendant's responsibility for his wrongful act; and if the existence of the summary procedure leads to delay, and that delay to further loss, that seems to me a natural result, the consequences of which must fall on the defendant.

27. Another point urged was that the delay had arisen, to a large extent, from the plaintiff himself, the defendants throughout having been anxious to sell, and the plaintiff desirous to impede or postpone the sale. But the answer to this is that the plaintiff had a right to take whatever steps the law enabled him to take with a view to preventing the occurrence of a wrong to himself; and if, in so doing, he occasioned delay, that delay is a consequence arising out of the defendants' act, and for which the defendants may fairly be held responsible. I think, therefore, that the original Court has rightly assessed the damages in giving the plaintiff the value of his goods on the date of the attachment, and I concur in dismissing the appeal.

1. [Section 283: The party against whom an order under Sections

Shaving or suits to estab- 280, 281 or 282 is passed may institute a suit to establish the

lish right to attached pro- right which he claims to the property in dispute, but, subject to

perty. the result of such suit, if any, the order shall be conclusive.]

2. [Section 278: If any claim be preferred to, or any objection be made to the attachment

of, any property attached in excution of a decree, on the ground

Investigation of claims that such property is not liable to such attachment, the Court

to, and objections to attach- shall proceed to investigate the claim or objection with the like

ment of, attached property. power as regards the examination of the claimant or objector,

and in all other respects, as if he was a party to the suit:

Provided that no such investigation shall be made where the Court considers that the claim or

objection was designedly or unnecessarily delayed.

If the property to which the claim or objection applies has been advertised for sale, the

Court orderiag the sale may postpone it pending the investiga-

Postponement of sale. tion of the claim or objectin.

Section 279: The claimant or objector must adduce evi-

Evidence to be adduced dence to be adduced denoe to show that at the date of the

by claimant. attachment he had some interest in, or was possessed of, the

property attached.

Section 280: If upon the said investigation the Court is satisfied that, for the reason

stated in the olaim or objection, such property was not, when

Release of property from attached, in the possession of the judgment-debtor or of some

attachment. person in trust for him, or in the occupancy of a tenant or

other person paying rent to him, or that, being in the possession

of the judgment-debtor at such time, it was so in his possession, not on his own account or

as his own property, but on account of or in trust for some other person, or partly on his

own account and partly on account of some other person, the Court shall pass an order for

releasing the property, wholly or to such extent as it thinks fit, from attachment.

Section 281: If the Court is satisfied that the property was, at the time it was attached,

in possession of the judgment-debtor as his own property and

Disallowance of claim to not on account of any other person or was in the possession of

release of property attach- some other person in trust for him; or in the occupancy of a

ed. tenant or other person paying rent to him, the Court shall

disallow the claim.

Section 282: If the Court is satisfied that the property is sub-

Continuance of attach- ject to a mortgage or ueu in favour of some person not in posses-

ment subject to claim of sion thinks fit to continue the attachment, it may do so,

incumbrancer. subject to such mortgage or lien.

Section 283: The party against whom an order under Sections

Saving of suits to estab- 280, 281 or 282 is passed may institute a suit to establish the

lish right to attached pro- right which he claims to the property in dispute but, subject to

perty. the result of such suit, if any, the order shall be conclusive.]


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