MUTHUSWAMI GOUNDAN Vs. DHANUSHKODI NADAR

JUDGEMENT

(1.) Defendants 1 and 3 in O. S. No. 153 of 1946 on the file of the Subordinate Judge's Court, Coimbatore, appeal against the decree of the learned Judge directing them to pay a sum of Rs. 2200 with future interest and costs to the plaintiff. There is a memorandum of cross objections by the plaintiff, objecting to the dismissal of his suit with regard to his claim for Rs. 3500.

(2.) The plaintiff claimed that he was the proprietor of a hotel by name, The Star Biriyani and Meals Hotel in Coimbatore which was run in his own name and with big own funds. The ownership of the building was in defendant 1, though originally the transactions were with both defendants 1 and 3. On the basis of the landlord's right to the building in which the plaintiff was conducting his hotel, defendant 1 filed O. S.No. 271 of 1943 on the file of the District Munsif's Court of Coimbatore, impleading only defendant 2 herein as a party defendant. The basis of the claim of defendant 1 was that the hotel was being run by the present defendant 2 and not by the plaintiff and as such defendant 2 owed defendant 1 arrears of rent for the premises. The plaintiff further alleged that this suit by defendant 1 against defendant 2 was a collusive one on a so-called false agreement of tenancy and the decree was obtained collusively against defendant 2. In execution of that decree, the entire movable properties which were in the hotel were attached and the plaintiff was also dispossessed of the premises. This was done on day when the plaintiff was not in the hotel premises but was away at some other place, and the decree-holder and amin drove away the plaintiff's agents, removed the things and articles illegally and unlawfully caused collusive records of delivery of possession. All the articles which were in the premises were not mentioned in the attachment list but only some of them were so included, the rest being clandestinely removed, at the instance of defendant 1, secreted and appropriated to his own use. Such of the articles as were specifically mentioned in the attachment list are set out in Schedule A to the plaint and these which have been secreted and appropriated are mentioned in Schedule B to the plaint.

(3.) When the plaintiff came to know that the articles had been removed and that his servants were driven out from the premises, he filed a claim petition relating to Schedule A properties but the same was dismissed by the District Munsif. Thereafter, the plaintiff filed a suit against the present defendants 1 and 2 on the file of the District Munsif's Court to set aside the order on the claim petition. But during the pendency of that suit, defendant 2 paid off the decree amount in O. S. No. 221 of 1943 to defendant 1 and since the decree was entered as satisfied, the attachment was raised and the plaintiff's suit had to be dismissed as it became infructuous. After the attachment on the properties was raised, defendant 2 got possession of them. It has to be mentioned that when the articles were attached, defendant 3 stood surety for custody and removed them to his own place and subsequent to the raising of the attachment defendant 3 handed over these articles to defendant 2, The plaintiff therefore claimed recovery of the articles mentioned in Schedules A and B to the plaint which were valued respectively at Rs. 1000 and Rs. 1200 respectively and there was a further claim for damages incurred by him for the wrongful attachment of these properties in the sum of Rs. 3500.