MANJAPPA CHETTIAR Vs. GANAPATHI GOUNDEN

JUDGEMENT

(1.) The suit in this case was for damages sustained by the plaintiff by reason of the defendant causing his properties to be attached before judgment in a suit instituted by the defendant against the plaintiff (O.S. No. 6 of 1906 in the District Court of Coimbatore). The defendant along with his plaint (O.S. 6 of 1906) put in an application for attachment of all the properties of the plaintiff. The suit was for a sum of Rs. 6,000 on a pro-note executed by the plaintiff" in favour of defendant s brother. The properties attached were, according to the District Munsif s finding in this case, worth at least Rs. 60,000, and on the defendant s own admission their value was not less than Rs. 30,000. The defendant stated in support of his application for attachment that the plaintiff had alienated some of his properties and was about to alienate his other properties in order to defeat the execution of any decree the defendant might obtain against him.

(2.) He obtained an interim order of attachment, but it was set aside on the plaintiff s application, the court holding that there was no ground for the application for attachment. The defendant in his written statement alleged "that the plaintiff had plenty of debts and warrants against him, and getting afraid at the action of the plaintiff, who without paying the defendant s debt, mortgaged properties for Rs. 15,000 to his elder brother and executed some other documents in favour of others, the defendant issued a notice for the discharge of his debt; but it has not been discharged." He then proceeded to state that his debt was not discharged by the plaintiff for two months after he obtained the decree. All the defendant s allegations about the plaintiff s indebtedness and alienations have been found to be untrue except that the plaintiff had executed a mortgage for Rs. 15,000 in favour of his brother. The District Munsif found that the defendant had absolutely no grounds to believe that the plaintiff intended to defeat him or any other creditor. He also found that the defendant had no reasonable grounds for believing his allegations. He then observes that "unless the defendant had some object (which from his conduct appears to have been sinister and indirect) in view, he could not have applied for attachment of all the plaintiff s properties worth about Rs. 75,000 at least for his debt of Rs. 5,000 and odd." He also says that the defendant had no information, before putting in his application for attachment, of any intention 011 the plaintiff s part to make alienations or of his being indebted to any one except his brother. He found also that the plaintiff must have been put to great mental suffering and apparently credited the plaintiff s statement that he suffered in reputation. He allowed Rs. 500 as damages. On appeal the Subordinate Judge concurred in the Munsif s finding that there was no reasonable and probable cause for the defendant s application, though the language used by him is not quite happy. With regard to the defendant s motive again, his finding is not as precise as might be desired. He refers to the defendant s allegations in his written statement already referred to, and then states : - "From these pleadings it appears to me that the object of the present defendant in applying for an attachment before judgment in O.S. No. 6 of 1906 Was simply to have his money paid without delay and without enabling the plaintiff to take the objections he took in the previous suit, and thus to delay payment." The objection in the previous suit spoken by the Subordinate Judge was that the defendant s brother, to whom the pro-note sued on had been executed, assigned it to the defendant deliberately with a view to deprive the plaintiff of the opportunity of pleading a set off of certain debts which the defendant s brother owed to him. The Subordinate Judge then says : - "Plaintiff does not say in his evidence, and has adduced no other proof, of enmity between him and the defendant or of any evil motive of the defendant." The finding, therefore, must be taken to amount to this : that the defendant wished to use the process of attachment before judgment to obtain prompt payment of his debt and not with the view of preventing the plaintiff from alienating his properties so as to defeat any decree, but at the same time not on account of any enmity.

(3.) With regard to the question whether the plaintiff sustained any damage the Subordinate Judge merely observes : - "For the injury sustained by the plaintiff by reason of all his properties being attached improperly he is no doubt entitled to damages." He reduces the amount of damages to Rs. 250 in consideration of the defendant not being a wealthy man. The defendant has1 appealed to this Court against this judgment, and the plaintiff has preferred a memorandum of objections to the reduction of the amount awarded as damagee.