Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the defendant in a suit for damages for wrongful attachment of moveable property. The appeal had been referred to a Full Bench, Sorendra Nath Koer v. Bhusan Chandra Pal 67 Ind. Cas 375 : 31 C.L.J. 496 (F.B.) and has now come up for final disposal.
2. The defendant obtained a decree for money against the father and the brother of the plaintiff, in execution of that decree, he caused an oil mill to be attached which be alleged was the property of his judgment-debtors. The attachment was effected on the 22nd January 1911. The oil mill was taken to pieces and was brought into Court. The plaintiff thereupon preferred a claim on the allegation that the oil mill was his property, had been purchased with his separate funds, was in his possession and was not liable to be attached in execution of the decree obtained by the defendant against his judgment-debtors. The claim was 'duly investigated with the result that on the 1st April 1911 it was allowed. The Court found that the oil mill had been purchased by the plaintiff with his own money, was his exclusive property, was in his possession and was not liable to be attached in execution of the decree obtained by the defendant. The Court thereupon made an order that the property be released from attachment and be returned to the plaintiff. The order was made on a Saturday and the Court found it impossible to make over the moveable property to the plaintiff on that day. On Monday following, that is, the 3rd April 1911, the defendant instituted a suit for declaration of his right to execute his decree against the oil mill as the property of his judgment debtors. At the same time, t e applied to the Court that the oil mill might be retained in the custody of the Court during the pendency of the litigation. The Court directed the plaintiff to furnish security, if he desired to have the oil mill restored to him pursuant to the order made in his favour two days previously. The plaintiff was unable to furnish the security demanded, an order absolute was consequently made that the oil mill was to no adduce in the custody of the Court till the suit instituted by the defendant was decided. That suit was ultimately dismissed by the Trial Court on the 31st May 1912, and the seems of dismissal was confirmed on appeal. On the 22nd January 1914, the plaintiff instituted the present suit for damages for wrongful attachment of his oil mill. He alleged that he had suffered considerable logs as his oil mill had been taken to pieces and had become useless, and be added that this injury had been cause a by the defendant maliciously. The Court below have decreed the suit. On behalf of the defendant appellant it has been argued that the suit is not maintainable inasmuch as this is not a case of trepass to goods. We are of opinion that this contention is wholly unfounded.
3. The damage offered by the plaintiff is attributable directly to the wrongful attachment effected on the 22nd January 1911 There can be no question that for that attachment the defendant is responsible. Order XXI, Rule 12 of the Civil Procedure Code, 1908, provides that 'where an application is made for the attachment of any moveable property belonging to a judgment, debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.' It is on the basis of this inventory that the attachment is effected in the manner preferred in Rule 43 which provides that: 'Where the property to be attached is moveable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer snail keep the property in his own custody or in the custody of one of his subordinate?, and shall be responsible for the due custody thereof.' It is plain, as pointed out by Norman, J., in Soobjan Beibee v. Sheikh Shureeutoollah 12 W R. 329 : 3 B.L.R.A.C.J. 413, that for the attachment the decree-holder is responsible, because it is he who specifies the goods which are seised in execution as the property of his judgment-debtor. Consequently, the attachment in this case, on the facts found, was wrongful, and in the words of Lord Watson in Kissori Mohun Roy v. Harsukh Das 17 I.A. 17 at p. 27 : 7 C. 436 at p. 443 : 13 Ind. Jur. 452 : 5 Sar. P.C.J. 472 : 8 Ind. Dec. (N.S.) 830, 'the illegal attachment was thus the direct act of the appellants for which they became immediately responsible in law.'
4. But it has been argued that the position of the defendant was improved by reason of the subsequent judicial determination that the properties had been wrongfully attached, as they were not the properties of his judgment-debtors. His contention is that the subsequent order that the property should not be released and returned to the plaintiff was a judicial order which affords a protection against the claim for damages. In support of this position, reliance has been placed on the decision in Peruvian Guano Co. v. Dreyfus (1892) A.C. 166 : 61 L.J.Ch. 749 : 66 L.T. 536 : 7 Asp. M.C. 225(1). That case is clearly distinguishable, In that case, there was a judicial appointment of a Receiver who was authorized to take charge of the disputed property. In the present case, the root of the mischief was the wrongful attachment effected at the instance of the defendant, who pointed out the oil mill as the property of his judgment-debtors. The case is obviously one of trespass and falls, within the principle laid down in Clissold v. Cratchley (1910) 2 K.B. 244 : 79 L.J.K.B. 635 : 102 L.T. 520 : 54 S.J. 142 : 26 T.L.R. 409 which was followed in Bhut Nath Pal Mistry v. Chandra Benode Pal Chowdhury 16 Ind. Cas. 413 : 16 C.L.J. 34 and the suit is consequently maintainable. The decisions in Joykalee Dassee v. Representative of Chandmalla 9 W.R. 133, Wilson v. Kanhya Sahoo 11 W.R. 143, Raj Chunder Roy v. Shama Soondari Debi 4 C. 583 : 2 Ind. Dec. (N.S.) 370, Madras Steam Navigation Co. Limited v. Shalimar Works Limited 28 Ind. Cas. 463 : 42 C. 85 at p. 108, Mohini Mohan Misser v. Surendra Narain Singh 26 Ind. Cas. 296 : 42 C. 550 : 21 C.L.J. 68 : 18 C.W.N. 1189 and Nanjappa Chettiar v. Ganapathi Goundan 12 Ind. Cas. 507 : 35 M. 598 : 10 M.L.T. 365 : (1911) 2 M.W.N. 414 : 21 M.L.J. 1052 are clearly distinguishable, as, on their special fasts, they were not regarded as cases of trespass at all.
5. It has finally been argued that the claim is barred by limitation, if not in its entirety at least in part. No question of limitation, however, was raised in either of the Courts below, and we are of opinion that the appellant is not entitled to invite the Court at this stage to entertain the point. The principle applicable in circumstances of this character, under the Code of 1882, was laid down by this Court in Balaram Gantia v. Mangta Dais 34 C. 941 : 6 C.L.J. 237 : 11 C.W.N. 959. It was there pointed out that Section 4 of the Indian Limitation Act, 1877, which has been replaced by Section 3 of the Limitation Act of 1908, does not entitle the defendant to raise a point of limitation at the appellate stage, unless the Court can give effects to the contention without the determination of questions of fact, in other words, that the Court of Appeal is bound to entertain a new ground of limitation, only when the point appears, on the face of the record, to be supported by the evidence produced in the Court of first instance. The matter has now been placed beyond all doubt by Order 'VIII, Rule 2, Civil Procedure Code, which shows that the question of limitation must be raised by the defendant by his pleading. It is impossible for us to say that if the question of limitation had been raised in the Court of first instance, as it should have been, there could not have been a complete answer by the defendant. In our opinion, there is no doubt that the decree is correct and must be affirmed.
6. The appeal is dismissed with costs of two hearings before the Division Bench.
Ernest Fletcher, J.
7. I agree.