MANMAL SEWARAM MAHAJAN Vs. DEEPCHAND AND INDUMAL MAHAJAN

JUDGEMENT

(1.) THIS second appeal preferred by the defendant raises the question regarding bar of limitation for the maintainability of the present suit for recovery of Rs. 1,000 as damages on account of wrongful attachment of plaintiff's property. The attachment had been effected in a proceeding for attachment before judgment in an earlier suit filed by the defendant against the plaintiff for recovery of money. This earlier suit was Civil Suit No. 388 of Samvat Year 2000. The present suit for recovery of damages was filed on 4 -5 -1951. According to the plaintiff in the earlier suit referred to above the defendant applied for attachment before judgment on certain grounds. This application was allowed and the Court by its order dated 16 -9 -1944 ordered the property of the plaintiff to be attached. In pursuance of this order actual seizure of the plaintiff's property took place on 19 -9 -1944 and the property thus seized was entrusted to a Supratdar. To this attachment the plaintiff objected on the grounds that the order for attachment bad been applied for on insufficient grounds. Plaintiff further states that he bad also claimed Rs. 1,000 as damages but the defendant failed to prosecute his application for attachment before judgment contested by the plaintiff and got the proceedings for attachment before judgment dismissed for default on 6 -5 -1946. The result was that the order of attachment before judgment was vacated. In the order dismissing the proceedings regarding wrongful attachment the Court ordered that the question of damages and costs for wrongful attachment would depend upon the decision of the earlier suit upon merits. However, it is said, the Court, while disposing of the defendant's suit against the plaintiff on 16 -8 -1050, gave no direction regarding the damages which had been claimed. The plaintiff, therefore, brings the present suit for recovery of damages and contends that the attachment had been applied for by the defendant maliciously and without reasonable and probable cause and on insufficient grounds. In giving the details as to damages claimed the plaintiff alleged that his shop which was near the Gopal Mandir square in Ujjain remained closed for 1 1/2 months. Rs. 500 are claimed as compensation in respect of this closure. Rs. 500 are further claimed for loss of reputation and credit due to the attachment effected by the defendant. The cause of action was stated to have arisen on 16 -9 -1944 when the attachment was actually effected as also on 16 -8 -1950 when that Court failed to give any damages.

(2.) THE defendant contested the suit inter alia on the ground that the claim was barred by limitation. The defendant did not dispute the fact that the proceedings regarding inquiry as to the propriety of attachment were dismissed for default on 6 -5 -1946, He further did not accept the fact that any cause of action arose in plaintiff's favour on 16 -8 -1950, The trial Court framed issues bearing on the question of limitation which were issues Nos. 5, 7 and 8 and treated them as preliminary in pursuance of its power under Order 14, rule 2, Civil Procedure Code. After hearing arguments addressed to it by the parties on those issues the trial Court held the claim of the plaintiff to be barred by time. According to it the starting point for limitation was 16 -9 -1944 and since the suit had been filed on 4 -5 -1951 it was barred by limitation under Article 13 of the Kanun Miyad Samaat Riyasat Gwalior which applied to the suit in question. The suit was accordingly dismissed. On appeal the appellate Court reversed the decision and held the suit to be within time. The suit was accordingly remanded for trial on other issues left undecided.

(3.) IT is not disputed that there is no provision corresponding to Article 29 of the Indian Limitation Act in Kanun Miyad Samaat Riyasat Gwalior and that the question of limitation will have to be determined with reference to Article 13 of the Gwalior Act which corresponds to Article 120 of the Indian Limitation Act. That provision is as follows: - Suit for which no period of Six years. When the right to sue accrues limitation is provided elsewhere in this Schedule. Main point, therefore, which arises for consideration is, when does the right to sue accrue to the plaintiff ? Does it accrue when the attachment of his property takes place or it accrues only after the decision of the earlier suit which failed to award him any damages which he had claimed ? In the absence of an Article corresponding to Article 29 of the Indian Limitation Act it cannot be said that the starting point of limitation is the date of seizure. The view, taken in Pannaji Devi Chand and Co., v. Sanaji Kapur Chand, AIR 1930 Mad. 636 and Krishna v. Sitaram : AIR 1931 Nag. 47 : 13 NLJ 209, that the time begins to run under Article 29 of the Limitation Act from the date of actual seizure and not from the date the seizure is declared wrongful by a competent Court, has no application. But it is contended on behalf of the appellant that even under Article 13 of the Gwalior Act the right to sue should be taken to have accrued in plaintiff's favour when his property was wrongfully attached. In order to consider this question it will be necessary to refer to some of the decisions relied upon on behalf of the respondent.