SBRAHMASURIAH Vs. AMBA BAI ALIAS SUNDARA BAI

JUDGEMENT

(1.) The Petitioner is the defendant. He made an application for compensation under Section 95 of the Code of Civil Procedure which was dismissed by both the Courts below on the ground that it was not maintainable. The suit was brought by the respondent on a promissory note executed by the defendant on May 15, 1960 and in the suit which was instituted by the plaintiff on August 24, 1960, the plaintiff applied for the attachment of a house belonging to the defendant. That attachment was effected. The defendant thereupon made an application for the payment to him of a sum of Rs. 1,000/- as compensation on the ground that the attachment was applied for on insufficient grounds. The defendant however deposited the entire amount due to the plaintiff including costs and current interest soon after the institution of the suit with the result that it was recorded by the Court that the suit was disposed of by settlement out of Court. But it made a further order that the application presented by the defendant under Section 95 of the Code of Civil Procedure was not sustainable since the suit itself was amicably settled. From that order dismissing the defendant's application under Section 95 of the Code of Civil Procedure the defendant appealed and the appellate Court taking the view that an application under Section 95 of C. P. C. must always be preceded by an application for the cancellation of the order of attachment which the defendant had not made in this case, considered the application presented by the defendant to be not maintainable and accordingly dismissed the appeal. The position therefore was that, while the first Court dismissed the defendant's application on the ground that that application could not be pursued after the suit had been settled out of Court, the appellate Court rested its conclusion on another ground, viz., that the omission on the part of the defendant to make an application for getting the attachment set aside was an impediment to the claim for compensation.

(2.) The question to be considered therefore is whether any one of these two grounds on which the decisions of the two Courts below respectively rested is substantial or correct.

(3.) Section 95 of the Code of Civil Procedure leads;