DEVAYYA GOWDA Vs. M GANAPATHI SRINIVAS KAMATH

JUDGEMENT

(1.) These two appeals are filed against the decree passed in OS. No.38 of 1866 on the file of the Civil Judge At Mangalore. The plaintiff who is the respondent before us and who is the son ol one Srimvasa Kamath, filed the above suit for recovery of Rs.21,032-50 jointly and severally from defendants 1 to 7 on the basis of the following allegations.

(2.) The plaintiff has been carrying on business in areca and other agricultural produce in Puttur from the year 1942 at his shop premises bearing door Nos.13/95 and 13/96 and the said business exclusively belongs to him, that at or about 9 a.m. on 26-4-65, defendants 1 to 7 came to his shop; and defendant 3 who was the Amm attached to the Court of the Munsiff at Puttur had with him at that time a warrant for attachment of moveables Issued in REP No.145 of 1965 against Srinivasa Kamath, the father ot the plaintiff m execution of a decree passed m OS. No.288 of 1953 on the file of the said Court. One Athri Rama Prabhu had obtained a money decree m OS. No.288 of 1953 against Srinivasa Kamath and that the decree had remained unsatisfied. Athri Rama Prabhu had assigned the decree in favour of one Kamalaksha Pai, who in his turn had transferred it in favour of defendant 1 iji this suit. When defendant 3 -proceeded to attach the goods lying in his shop, the plaintiff protected saying that his goods could not be attached in execution of the decree obtained against his father. He also sent for an Advocate, Sri K. N. Mallya, practising at Pattur in order to explain the true legal poosition to defendant 3. Defendam 3 who was assisted by defendantss 4 and 5, who were also the Amins attached to the Munsiffs Court at Futtur, did not pay any heed to the protests of the plaintiff. After Mallya arrived, he also persuaded defendants 3 to 5 not to proceed with the attachment of the goods belonging to the plaintiff. All the defendants who were present were informed that Srinivasa Kamath, judgment-debtor in REP No. 145 of 1965 had no sort of interest in that shop and the business which was being carried on there, and that Srinivasa Kamath was not present at that time in the shop. In the meanwhile, two other respectable persons of Puttur, namely, Hanumantha Bhat and Manjunatha Kini offered to stand as sureties. The plaintiff also suggested that he was willng to offer cash security in order to avert the attachment of the goods. The appeals made by the plaintiff, Sriyuths Mallya, Hanumantha Bhat & Manjunatha Krni were all in vain.

(3.) Defendants 3 to 5 refused to accept the sureties and the cash security offered by and on behalf of the plaintiff and attached thirty bags of biligotu areca weighing 1893 Kgs. of the value of about Bs. 13,000. No attachment proceedings were drawn up at the premises of the shop. The goods which were seized were loaded into a lorry bearing No.MYA 4938 which had been brought by the defendants and they were taken away by all the defendants. It was alleged that the conduct of the defendants amounted to trespass and that the plaintiff had been wrongfully deprived of his goods by defendants 1 to 7 who acted in concert with a view to causing loss to the plaintiff. Since on 26-4-1965 the Munsiff's Court at Puttur had been dosed on account of summer vacation, the plaintiff went to Mangalore and moved a petition before the Vacation Judge to release the goods that had been illegally attached, After depositing a sum of Rs.5,000. On the same day, the Vacation Judge ordered the release of the goods and directed the Bailiff of the Munsiffs Court at Puttur to release the goods, From the papers that were later on lodged with the Court of the Munsiff by defendant 3, it was known that the goods had been entrusted to defendants 1 and 2 as sureties by defendant 3. All the attempts made to serve defendants 1 and 2 with the order for release of the goods failed since they were not traceable. It was further alleged that defendants 6 and 7 Apart from otherwise assisting defendants 1 to 5 in illegally aeizing the goods, certified on the attachment warrant regarding the solvency of defendants 1 and 2 even though they were persons of no means at all and that the goods were taken from the place of attachment to the residence of defendant 6 at Kanakamajalu situate about 14 miles away from Puttur Town. When it was not possible to recover the goods which had been illegally attached or their value even after a claim petition filed by the plaintiff under Or.21, R.58 CPC had been allowed, the plaintiff caused registered notices issued to all the defendants on 10-9-1966 calling upon them to make good the loss which the plaintiff had sustained. The defendants sent replies containing false find frivolous allegations. Thereafter the plaintiff instituted the above suit against all the defendants on the basis that they were joint tort-feasors who were Jointly and severally liable to pay damages for the wrongful attachment made on 26-4-1965. The plaintiff estimated the value of the goods attached at Rs. 13,000 and estimated the profits which he would have made but for the seizure at Rs.2,000. He Claimed Rs.6,000 as damages for mental agony. On the total sum of Rs.20,000 so claimed, the plaintiff claimed interest at 6 per cent per annum from 26-4-1965 upto the date of institution of the suit amounting to Rs.982-50; Rs.50 towards notice charges, and future interest at six percent per annum.