PARIKH JIVANLAL MANILAL Vs. SHAH CHHITALAL CHUNILAL

JUDGEMENT

(1.) This is an appeal against an order made by the Civil Judge, Senior Division, of Baroda, on an application filed by one of the defendants in the original suit under S. 95 of the Civil Procedure Code for awarding of compensation against the plaintiff on the ground that the plaintiff had got effected an attachment before judgment of his property without sufficient reasons. The learned trial Judge held that the defendant applicant had succeeded in showing that the attachment before judgment had been effected without sufficient reasons. He accordingly awarded an amount of Rs. 500 to the defendant applicant from the plaintiff.

(2.) The application for attachment before judgment was made by the plaintiff on the same day on which he instituted his suit for an amount of Rs. 21,719-14-9 due on the foot of accounts. The learned trial Judge, before whom the application came for preliminary orders, granted an ex parte order for attachment before judgment. This ex parte order was however vacated after the defendant put in his objections in that application. Thereafter, on 4-2-1957 the defendant filed the application under S. 95 out of which the present appeal arises complaining that there was no reasonable and probable cause for the plaintiff to get the properties and houses, attached before judgment, and therefore he had suffered loss of reputation. The learned trial Judge held that under the circumstances of the present case, the defendant would be entitled to an amount of Rs. 500 for the loss of reputation and mental injury which he suffered on account of the attachment before judgment.

(3.) The plaintiff filed an affidavit stating that there were reasonable and probable causes which entitled him to get the order of attachment before judgment.He also filed an affidavit of one Bansilal Ambulal, who was his neighbour. Bansilal in his affidavit stated that when he had met the defendant in the Bazar of Dabhoi, the defendant told him that as the plaintiff was not allowing him to pay the amount by instalments and was not prepared to forego the interest, he would dispose of his properties and see how the plaintiff would recover any part of his claim. Sometime thereafter Bansilal went to the plaintiff and gave the information which had been given to him by the defendant. It was then that the plaintiff instituted his suit and made the application for attachment before judgment under the provisions of Order 38.