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Chandulal Seraogi Vs. Purna Chandra Pal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inILR1935NULL73
AppellantChandulal Seraogi
RespondentPurna Chandra Pal
Cases ReferredHindley v. Joynarain Marwari
Excerpt:
civil procedure code (act v of 1908), sections 95, 115(a)(c) - claim under section 95--attachment before judgment--defendant humiliated--whether ground for awarding compensation--wrong interpretation of statute by lower court and hence assuming jurisdiction--order liable to be set aside under section 115(c). - .....which the application under section 95 was based. he held that the opposite party was entitled to claim compensation inasmuch as he felt humiliated and his prestige suffered by reason of the attachment before judgment effected at the instance of the petitioner.3. the question before me is whether on the above findings the claim preferred is admissible under section 95 i have not to consider here whether damages could be claimed for malicious arrest or malicious attachment in a suit properly framed. but i am dealing here with an application under section 95 where the matter is to be summarily investigated. the whole question centres round this controversy, namely as to the precise meaning of the wordsaward against the plaintiff...a reasonable compensation to the defendant for the expense.....
Judgment:
ORDER

R.C. Mitter, J.

1. This Rule has been obtained by the plaintiff against whom damages have been awarded under the provisions of Section 95 of the Code of Civil Procedure. It appears that the plaintiff instituted a suit to recover a sum of money from the defendant on the basis of a promissory note. After filing the suit he made an application for attachment before judgment of some immovable properties belonging to the opposite party. On January 7, 1933, the conditional order for attachment before judgment was made and that order was made final on January 10,1933. Seven days later, the opposite party came to Court, deposited the amount of the claim and the attachment was withdrawn. Later on, he did not contest the suit which was decreed without contest. Thereafter, the opposite party made an application for compensation under the provisions of Section 95 of the Code. The allegations made in the said application are recited in para. 5 of the application for revision filed in this Court but they need not be set out in detail for the purposes of the Rule.

2. The Court of first instance held that the claim of the opposite party was not admissible under the provisions of Section 95 and, therefore, he dismissed the application. An appeal was taken, and the lower Appellate Court has held that the opposite party is entitled to get compensation which has been assessed at Rs. 100. In delivering the judgment, the learned Subordinate Judge negatives most of the allegations on which the application under Section 95 was based. He held that the opposite party was entitled to claim compensation inasmuch as he felt humiliated and his prestige suffered by reason of the attachment before judgment effected at the instance of the petitioner.

3. The question before me is whether on the above findings the claim preferred is admissible under Section 95 I have not to consider here whether damages could be claimed for malicious arrest or malicious attachment in a suit properly framed. But I am dealing here with an application under Section 95 where the matter is to be summarily investigated. The whole question centres round this controversy, namely as to the precise meaning of the words

Award against the plaintiff...a reasonable compensation to the defendant for the expense or injury caused to him.

4. In order that a claim under Section 95 be admissible, it is necessary that the Court should find that the attachment or arrest or injunction was applied for on insufficient grounds, and secondly, it can only award compensation for the expense or injury caused to the defendant. It would follow from a plain construction of the section that any claim whatsoever that the defendant may choose to put forward in such an application is not admissible. The claim must be in. respect of some damage caused to him as the proximate result of the attachment, arrest or injunction which had been applied for on insufficient grounds. This is the view which has been taken by a Division Bench of this Court in the case of Jaharmull-Chimanlal & Co. v. Iswardass : AIR1932Cal695 a decision which I am bound to follow. No doubt, the Madras High Court has given a very elastic interpretation to the word 'injury' as used in the section, but there being a decision of this Court expressly dealing with this point, I have to follow that decision.

5. Sir Syed Saadullah on behalf of the opposite party has raised a question that an application in revision is not maintainable. He says that the decision given by the lower Appellate Court involves at most an erroneous decision on a point of law. I am unable to give effect to this contention. It has been held in this Court that if a Court by a misinterpretation of the provisions of a statute assume a jurisdiction in respect of a matter over which it would not have had jurisdiction if the statute had been rightly interpreted, the order made is one which is liable to be revised if not under Clause (a) to Section 115 at least under Clause (c) of the said section. The case of Hindley v. Joynarain Marwari 46 C 962 : 54 Ind. Cas. 439 : 24 CWN 288 is an illustration of the proposition I. am stating. I hold, therefore, that the lower Appellate Court was not justified in awarding any compensation to the opposite party on the basis that his prestige had suffered or that he felt humiliated.

6. There is one further point to be noticed. In the ordering portion of the judgment, the learned Subordinate Judge remarks that he gives Rs. 100 as damages to the opposite party for injury and expenses. If there had been any evidence on the record to show the amount of expenses to which the opposite party had been put to by reason of the attachment before judgment, I would have made an order in his favour limiting it to the amount of the expenses he had incurred in this respect but inasmuch as there is no evidence on this point, I am bound to discharge the order of the learned Subordinate Judge.

7. The result is that this Rule is made absolute, the order of the learned Subordinate Judge is set aside and that of the learned Munsif restored. In the circumstances of the case, I do not make any order for costs.


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