BAIJNATH GOENKA Vs. RANI SASHIRAMA KUMARI

JUDGEMENT

(1.) This is a suit of a very unusual character. The defendant-appellant, has fully made out (and indeed it has been hardly contested) that there is no cause of action. The defendant brought a suit against the plaintiff's father on the 28 August 1905, and that suit was dismissed on the 27 April 1907. During the pendency of the suit, defendant applied for attachment before judgment and upon the dismissal of the suit the present plaintiff applied, under Section 448 of the last Civil Procedure Code, for withdrawal of attachment, and the suit having been, as I have said, dismissed, an order was passed for such withdrawal. The defendant, however, preferred an appeal against the order of dismissal of the 27 April 1907, and it is stated that the appeal having been filed, the plaintiff was apprehensive that the defendant might attempt to revive the attachment before judgment, which had been withdrawn on the 10 May 1907; and because of his apprehension in this respect, he brought the present suit to have it declared, amongst other things, that the attachment was not duly published, that it was not issued upon a plaint adequately stamped and duly verified but upon an application not drawn up in accordance with law, and he also asked for a declaration that the attachment before judgment did not affect the property purchased by the plaintiff and for a further declaration that the suit, to which I have referred, having been dismissed, the attachment before judgment had fallen through and could not be revived.

(2.) It is obvious, I think, that such a suit as that does not lie. If the defendant at tempted to do something which the plaintiff contended he was not entitled to do, namely, to revive the attachment, there upon such application being made, it would be open to the plaintiff to take the objection that the attachment could not be revived, and if his objection was overruled there would be a further proceeding open to him in law, which would follow upon such refusal to give effect to his objection. The suit, in fact, was in that respect premature and further in point of law such a suit will not lie, as it is in reality a suit for a declaration that if the defendant takes certain legal steps, those steps will not be justified in law. Whether such steps are justified or not must, when they are taken, be determined by the Court before which the application is made, and not, in anticipation by the same or some other Court. This Court cannot, as has been pointed out, act as legal adviser of the parties or of other Courts before which, possibly, an application may be made. As a matter of fact we are informed that the result of the appeal has been that the appellant, by virtue of a compromise, dated the 10th December 1908, has obtained a decree for a lakh of rupees.

(3.) In these circumstances this appeal must be decreed with costs and the suit dismissed with costs. We say nothing about the merits of the case. The suit is dismissed on the ground that there is no cause of action.