TULA RAM MARWARI Vs. MOHRI LAL MARWARI

JUDGEMENT

(1.) This is a second appeal arising out of a judgment and decree of the Subordinate Judge of Bhagalpur, dated the 6 July 1908, dismissing the plaintiff's appeal. This suit is for compensation by way of interest on a certain Civil Court deposit, which he says was detained by the Court, from 6 September 1902 till 18 May 1903, owing to unlawful acts on the part of the defendants. Both the lower Courts have thrown out the case on the ground that it is barred by limitation under Art. 56 of the Limitation Act. Had either of the Courts taken the trouble to go through the record, as we have done, and satisfied themselves as to the actual facts of this case, we are persuaded that no academical discussion as to what limitation applies to this case would ever have been necessary. But we may say that we entirely disagree with both the lower Courts as regards Art. 36. That is for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not herein specially provided for. The Art. does not appear to apply in any sense to any of the allegations in the plaint. Whereas Art. 49 is exactly applicable to the case made by the plaintiff:

(2.) This is a suit for compensation for the Court having unlawfully detained the plaintiff's specific movable property, to wit, a deposit of Rs. l,605 and odd annas owing to the wrongful acts of the defendants. The learned Subordinate Judge found a difficulty in the fact that the actual rupees which the depositor gave cannot be returned. Anything more absurd could not be imagined. That the return of movable property, if it consists of money in specie, means the return of the same rupees is a proposition which cannot for one moment be entertained. If the property, as in this case, is money, the specific property is returned if an equivalent number of Rupees taken out of the Treasury in which the deposit was made is returned. But here the question of specific movable property does not arise, for it is the other part of the Art. , compensation for wrongfully detaining money, which is in question. Under this Art. this case is quite within time and must be considered on its merits.

(3.) As there is nothing before us but the evidence of the plaintiff and the order sheet in the case of 1902 and the judgment of the Court in 1903 by way of evidence, we have thought it proper to proceed under Section 103 and to hear the learned Vakil for the appellant on the merits and we propose to decide the case here on the facts before us. In order to establish the case made in this plaint, the plaintiff must show that the action of the Court in detaining this deposit became unlawful when the defendants obtained the order, dated 6 September 1902, that the issue of payment to the plaintiff be stayed for three days. Now such an injunction can only be held to be unlawful if it was obtained through some misrepresentation or illegal action of the defendants in inducing the Court to stay proceedings. So far from this being the case, we find that it was only for three days that the issue of payment was stayed: and although in his judgment of the 18 May 1903. the learned Munsif says that the attachment will be withdrawn, he must have passed the order under a misapprehension Since there was no attachment and never had been any attachment, for the only application for attachment made on the 28 August 1902 had been summarily rejected. The three days having elapsed on the 9 September 1902, the defendant, who was originally the decree-holder under a mortgage- decree against the plaintiff, which was still unsatisfied to the extent of Rs. 2,000 or so, made an application for execution of his decree. He applied to have the attachment of the money which was in deposit in the name of the plaintiff, which was in fact the surplus sale proceeds of the mortgage sale and was, therefore, under the law a portion of the mortgage property. He was met by the objection that he had already made an application under Section 90 of the Transfer of Property Act to proceed against the person and other properties of the judgment- debtor and that he could not, therefore, ask for further proceedings against the mortgage property. Upon that he asked that the matter might be treated as one under Section 244 and it might be decided whether he was entitled to proceed under Section 90 or whether he was entitled to this surplus sale proceeds. It appears that in his previous application under Section 90, he had been thrown out on the ground that there was still mortgage property, namely, this deposit remaining to be proceeded against and that, therefore, he had no case under Section 90. The unfortunate defendant thus fell between two stools and he appears to have waited the pleasure of the Court from the 9 September till the 18 May in the following year when the Court delivered judgment. As far as we can see on the order sheet, there is not a single day's delay which can be attributed to the action of the defendant. The judgment- debtor appeared and filed a petition on the 10 September and after various adjournments, which were made owing to the Court requiring certain other proceedings to be brought before it, on the 10 November 1902, the judgment-debtor filed a counter case to the decree-holder's case and the two cases were amalgamated in order to be decided together. From that day to the early part of the next year, the case was adjourned from time to time to suit the convenience of the Munsif and there does not appear to be a single application by either of the parties to put the case off. Eventually, as we have said, on the 18 May, the Munsif in a long judgment dismissed the decree-holder's petition holding that he was debarred, by technical mistakes in his procedure which we have already adverted to, from carrying his execution case any further, and it was also held that no fraud had been brought home to the judgment- debtor. The Munsif then, as we have already noticed, added the wholly unnecessary order that the attachment which had never existed should be withdrawn. This is the only evidence in the case except that of the plaintiff himself, and the plaintiff says that he could not get the money on account of the defendant's frivolous objection. Now if there ever were well-founded objections in fact and in equity, they are those of the decree-holder in this case. He has lost his money through ignorance of the technicalities of the law. He has perfectly honestly tried to recover his money in the only two ways which the law left it open to him to do so. Whichever way he tries, he is met with the finding that he was bound to try the other first and because he tried the first he was debarred from trying the other. Before the decision was finally come to, the Munsif wasted many months in adjournments without any intervention of the parties. How it can be said that the unlawful act of the defendant was the cause of the Munsif's detaining this money we are unable to see.