BHUSHAN CHANDRA PAL Vs. NARENDRA NATH KOOR AND ON HIS DEATH HIS HERIS AND LEGAL REPRESENTATIVES DHIRENDRA NATH KOOR

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for damages for wrongful attachment of moveable property. The appeal had been referred to a Full Bench, Sorendra Nath Koer v. Bhusan Chandra Pal 67 Ind. Cas 375 : 31 C.L.J. 496 (F.B.) and has now come up for final disposal.

(2.) The defendant obtained a decree for money against the father and the brother of the plaintiff, in execution of that decree, he caused an oil mill to be attached which be alleged was the property of his judgment-debtors. The attachment was effected on the 22nd January 1911. The oil mill was taken to pieces and was brought into Court. The plaintiff thereupon preferred a claim on the allegation that the oil mill was his property, had been purchased with his separate funds, was in his possession and was not liable to be attached in execution of the decree obtained by the defendant against his judgment-debtors. The claim was "duly investigated with the result that on the 1st April 1911 it was allowed. The Court found that the oil mill had been purchased by the plaintiff with his own money, was his exclusive property, was in his possession and was not liable to be attached in execution of the decree obtained by the defendant. The Court thereupon made an order that the property be released from attachment and be returned to the plaintiff. The order was made on a Saturday and the Court found it impossible to make over the moveable property to the plaintiff on that day. On Monday following, that is, the 3rd April 1911, the defendant instituted a suit for declaration of his right to execute his decree against the oil mill as the property of his judgment debtors. At the same time, t e applied to the Court that the oil mill might be retained in the custody of the Court during the pendency of the litigation. The Court directed the plaintiff to furnish security, if he desired to have the oil mill restored to him pursuant to the order made in his favour two days previously. The plaintiff was unable to furnish the security demanded, an order absolute was consequently made that the oil mill was to no adduce in the custody of the Court till the suit instituted by the defendant was decided. That suit was ultimately dismissed by the Trial Court on the 31st May 1912, and the seems of dismissal was confirmed on appeal. On the 22nd January 1914, the plaintiff instituted the present suit for damages for wrongful attachment of his oil mill. He alleged that he had suffered considerable logs as his oil mill had been taken to pieces and had become useless, and be added that this injury had been cause a by the defendant maliciously. The Court below have decreed the suit. On behalf of the defendant appellant it has been argued that the suit is not maintainable inasmuch as this is not a case of trepass to goods. We are of opinion that this contention is wholly unfounded.

(3.) The damage offered by the plaintiff is attributable directly to the wrongful attachment effected on the 22nd January 1911 There can be no question that for that attachment the defendant is responsible. Order XXI, Rule 12 of the Civil Procedure Code, 1908, provides that "where an application is made for the attachment of any moveable property belonging to a judgment, debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same." It is on the basis of this inventory that the attachment is effected in the manner preferred in Rule 43 which provides that: "Where the property to be attached is moveable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer snail keep the property in his own custody or in the custody of one of his subordinate?, and shall be responsible for the due custody thereof." It is plain, as pointed out by Norman, J., in Soobjan Beibee v. Sheikh Shureeutoollah 12 W R. 329 : 3 B.L.R.A.C.J. 413, that for the attachment the decree- holder is responsible, because it is he who specifies the goods which are seised in execution as the property of his judgment-debtor. Consequently, the attachment in this case, on the facts found, was wrongful, and in the words of Lord Watson in Kissori Mohun Roy v. Harsukh Das 17 I.A. 17 at p. 27 : 7 C. 436 at p. 443 : 13 Ind. Jur. 452 : 5 Sar. P.C.J. 472 : 8 Ind. Dec. (N.S.) 830, "the illegal attachment was thus the direct act of the appellants for which they became immediately responsible in law."