1. The plaintiffs-respondents sued for a declaration of their right to the lands in dispute which Had been attached under orders of the Criminal Court under Section 146 of the Criminal procedure Code and for mesne profits against the defendants 1st party.
2. The plaintiffs were owners of a 14 annas share of the lands and the defendants 1st party were owners of the remaining 2 annas, which also were subsequently acquired by the plaintiffs and they are now the owners of the entire 16 annas. It is alleged in the plaint that the defendants 1st party falsely setting up a tenancy claimed possession and made preparations to obtain forcible possession of the lands in dispute, and the Police having come to know this reported to the Magistrate that there was likelihood of a breach of the peace over the question of possession of the said land and proceedings were drawn up under Section 145., Criminal Procedure Code, and the Magistrate after taking evidence in the matter ordered the lands to be attached under Section 148 of the Criminal Procedure Code, as he was unable to find which party was in possession of the lands and that as the plaintiffs since that order have been wrongfully kept out of enjoyment of the lands, by the fraudulent and false claim of the defendant 1st party, they were entitled to mesne profits from them.
3. The defendants 1st party pleaded that they had no concern with the lands in dispute, that the plaintiffs were not entitled to any mesne profits against them, that; Mrs. Mackay who was in possession of the land covered by plot No. 1 of the order of the Criminal Court, not having been made a party, the Suit could not, proceed.
4. As the plaintiffs' title to the land was not disputed by the defendants, the Court of the first instance gave a decree to the plaintiffs declaring their title to and right to possession of the land but held that it would not affect Mrs. Mackay, who was no party to the suit, and disallowed the claim for mesne profits as it found the evidence, as to the defendants' possession of the lands to be unsatisfactory. It further held that defendants were not liable for damages.
5. On appeal the learned District Judge has held that the plaintiffs are entitled to damages and has remanded the case for assessment of damages.
6. The defendant 1st party have appealed to this Court and it is contended on their behalf that they cannot be held liable for damages as the order of attachment in consequence of which the plaintiffs were out of possession was an act of the Court and reliance is placed on the decisions in the cases of Ammani Ammal v. Sellayi Ammal 6 M. 426. and Mina Kumari v. Surendra Narain 10 C.L.J. 226 : 3 Ind. Cas. 12 : 14 C.W.N. 96.
7. I think that the contention of the appellant could prevails The lands lay uncultivated in consequence of the order of attachment made by the Magistrate under Section 146, Criminal Procedure Code. An order under that section is made if the Magistrate is unable, to satisfy himself as to which party was in possession. The loss sustained by the plaintiffs was not the probable result of the act of the defendant but was the consequent of a Judicial order. As pointed out in the case of Mina Kumari v. Surendra Narain 10 C.L.J. 226 : 3 Ind. Cas. 12 : 14 C.W.N. 96. it is well-settled that no action will lie against any person for procuring an erroneous decision of a Court of Justice. It is not alleged that the defendants committed any act of trespass on the land or themselves dispossessed the plaintiffs. The plaintiffs were out of possession by reason of the order of the Court, which again was due to the inability of the Court to determine which party was in possession, and I do not think that the inability of the Court to determine which party was in possession was the probable result of the defendants' setting up a false claim or attempting to take forcible possession which is all that is alleged against them.
8. The defendants did not move the Police nor the Court. That, however, is immaterial In the' case of Gaya Prasad v. Bhagat Singh 30 A.525 : 12 C.W.N. 1013 (relied on by the learned Judge), it was laid down by the Privy Council that it was not a principle of universal application that if the Police or Magistrate act on information given by a private individual without a formal complaint or application for process the Crown and not the individual became the prosecutor The mere setting of the law in motion is not the criterion. The conduct of the complainant before and after making the charge must also be taken into consideration.
9. In that case the charge was false to the knowledge of the defendants, who took the principal part in the conduct of the false case against the plaintiffs before the Police and in the Magistrate's Court and it was held that they were liable for damages for malicious prosecution though the prosecution was instituted by the Police.: But I do not think the case is an authority for the proposition that the defendants are to be held liable for the order of the Court passed in consequence of its not being able to satisfy itself as to which party was in possession, merely because they set up a false, claim.
10. It seems to me that the present case is covered by the cases reported in Ammani Ammal v. Sellayi Ammal 6 M. 426 and Mina Kumari v. Surendra Narain 10 C.L.J. 226 : 3 Ind. Cas. 12 : 14 C.W.N. 96.
11. The learned District Judge pointed out that in the Madras case the plaintiff herself was to blame in part inasmuch as she was not entitled to all the lands claimed by her but the judgment of the High Court did not proceed upon that ground.
12. The learned Vakil for the respondents sought to distinguish the case reported in Mina Kumari v. Surendra Narain 10 C.L.J. 226 : 3 Ind. Cas. 12 : 14 C.W.N. 96 on the ground that in that case the plaintiff himself moved the Court to take proceedings, under Section 145, when proceedings under Section 144 had been commenced. But that was only an additional ground. The decision was based on the ground that defendants could not be held liable for the erroneous decision of the Magistrate in consequence of which the plaintiffs suffered loss.
13. I am accordingly of opinion that the defendants are not liable for damages. The decree of the lower appellate Court is set aside arid that of the first Court restored but without costs.