SEENAPPA SETTY Vs. M SSURYANARAYANA RAO

JUDGEMENT

(1.) This petition arises out of an order made by the learned Additional Subordinate Judge of Mysore, awarding compensation of Rs. 100/-under Section 93 of the Code of Civil Procedure. The Petitioner before me instituted a small cause suit in the said Court of the Additional Subordinate Judge, Mysore, for arrears of rent on 1-2-1952. On that very day he obtained an order of attachment of an immoveable property of the defendant before judgment. On 6-3-1952, the defendant filed his objections to the said attachment, and on that day he also filed an application under Section 95 C. P. C., for compensation. On 14-11-1952 the suit was decreed. It is not clear as to what happened with regard to the attachment which had been levied. The application for compensation was, however, taken up and an order was made on 16-11-1954, by the learned Subordinate Judge awarding Rs. 100/- as compensation to the defendant. It is against that order that the present petition has been filed.

(2.) Before me it was urged by the learned Advocate appearing on behalf of the Petitioner that no such order could be made because the defendant in his said application under S. 95 C. P. C., did nnt allcgo that he had suffered any expense or injury and there is also no finding by the learned Judge on that point. He referred me to the provisions of Section 95 which inter alia provides as follows:

(3.) It seems to me that the contention of the learned Advocate for the Petitioner is sound and should be accepted. Apart from the decisions to which I shall presently refer, the section itself makes it quite clear that the compensaton to be awarded shall be reasonable compensation for "expense or injury caused to him." The compensation, therefore, can only be paid for such expense or injury which the defendant suffered by reason of such attachment. It follows, therefore, that the petitioner has to aver in his petition that by reason of such attachment he has suffered expense or injury and ho claims compensation for it. He shall have also to prove that he suffered such expense or injury. In this case, there is neither any averment nor proof of any expense or injury having been caused to him by reason of such attachment