K SYAMALAMBAL Vs. N NAMBERUMAL CHETTIAR

JUDGEMENT

(1.) THIS appeal arises but of a suit filed by the appellant for the recovery of a sum of Rs. 10,300 from the defendant as damages for -unlawful attachment of her properties. The material facts which are beyond controversy are: The defendant obtained a decree against one Perurl Suryapra-kasam on 9th May 1934 in C. S. No. 166 of 1934 on the original side of this Court. On llth January 1935 the suit properties among others were transferred by the said Suryaprakasam to one P. Venkatasubba Rao. The defendant in execution of the decree obtained by him attached the suit properties. Venkatasubba Rao filed a petition under Oder XXI, Rule 58 C. P. G. claiming the properties on the strength of his purchase. The petition was allowed in his favour. As against this order the defendant filed a suit. O. S. No, 171 of 1940, ,in the Subordinate Judge's Court of Chingleput. Meanwhile, on the 15th january 1940, there was an agreement to sell the suit properties by Venkatasubba rao in favour of one Murugesa Mudaliar. This was one day prior to the order of pre-ccpt Issued by this Court in the execution application filed by the defendant. The actual attachment was made on 19th January 1940. The sale deed was eventually executed by Venkatasubba Rao in favour of Murugesa Mudaliar on 1st joly 1940. The plaintiff, therefore, made Murugesa Mudaliar also a defendant in his suit, O. S. No. 171 of 1940. The learned Subordinate Judge held that though the transfer of the properties by the judgment-debtor Suryaprakasam to venbatasubba Rao was intended to defraud the creditors, Murugesa was a transferee in good faith for consideration. On this finding the suit was dismissed. The defendant preferred an appeal to this court, A. S. No, 289 of 1944 (Mad) (A ). The appeal was dismissed by this Court which found that the sale in favour of Murugesa Mudaliar was a bona fide transaction not liable to be set aside and therefore the properties were not liable to be attached in execution of the defendant's decree. But the Court made the following observations:

(2.) KRISHNASWAMI Nayudu, J.-, who tried the suit dismissed it. The learned Judge found that the defendant was bound by the judgment of this Court in A. S. No. 289 of 1944 in which it had been held that the suit properties were not liable to attachment in the hands of Murugesa Mudallar and prima facle it should be held that the attachment was not legal and proper. But he also found that the defendant cannot be said to have acted without reasonable or probable cause; nor could it be said that he was actuated by malice, and that in his opinion the attachment was made by the defendant in the honest belief that he was making use of the process of court in order to recover the moneys due to him. Though the attachment was wrongful, it was only technically so. In the result the learned judge dismissed the suit. The plaintiff has filed the above appeal but has restricted her claim to Rs. 2000. Learned counsel for the plaintiff-appellant contended that once the learned trial judge had found that the attachment was not lawful, the plaintiff would be entitled to damages: Before this contention can. be dealt with, it Is necessary to discuss the basis of the plaintiff's action. The claim obviously arises In tort. In our opinion the claim can fall under one of two heads, namely, CD trespass and (b) abuse of civil process. No direct authority has been cited by counsel for either party bearing on this ease. The following observations of Varadachariar J. in srinivasayya v. Lakshmayya, 1938-1 Mad LJ 73: (AIR 1937 Mad 811) (B), were brought to our notice by. learned "counsel for the, respondent:

(3.) THE learned Judge found it unnecessary to decide the question as the attachment in the case before him was made under Oder XVI, Rule 10 C. P. Code. Though the above observations are obiter and do not decide the liability for damages, the learned Judge was apparently of the opinion that when the property of a person not a party I to the suit is wrongly attached the action is really one founded on trespass.