JOSEPH NICHOLAS Vs. SIVARAMA AYYAR

JUDGEMENT

(1.) This Appeal is against the lower Court's dismissal of the plaintiff's suit for damages in connexion with the defendants application for attachment before judgment. The facts are that the attachment before judgment was ordered by the District Munsif of Calicut on 10th February 1919 and that first defendant accompanied by an Amin proceeded to the plaintiff's shop. The lower Court has dealt at considerable length with what happened there. It is not necessary to repeat its observations on the evidence. We need only say that there is a preponderance of evidence, including that of an European sergeant, whom we have no reason for distrusting, to the effect that the Amin proceeded so far as to take out the plaintiff's cloths from the shelves of his shop and began to measure them, when the plaintiff who had heard by then of what had happened paid the amount of the claim. We therefore reject the defendants case on this point that nothing was done towards making the attachment at all. It is in respect of this action of the defendants and the Amin at their instance that plaintiff claims damages.

(2.) No doubt, there was not, in our opinion, a completed attachment by seizure of any of the plaintiff's property; but that is not material. For the claim, as stated in the plaint, is generally in respect of the acts done and not expressly or exclusively in respect of a completed attachment; and there is in our opinion no doubt that the plaintiff may be entitled to compensation, even though the attachment was not completed, if, notwithstanding that he sustained injury by what was actually done. No authority has boen adduced by the defendants to show that a completed attachment is necessary. In Rama Ayyar V/s. Govinda Pillai (1916) I.L.R. 39 Mad. 952 it was held that a mere procuring of an order for attachment before judgment did not afford a cause of action for damages. Without expressing any opinion as to the correctness of certain parts of that decision, we can distinguish it from the facts now before us on the ground that they included several acts of the defendants and the Amin, by which injury to the plaintiff has, as we shall show, been established.

(3.) That being our conclusion as to the actual occurrence in respect of which the plaintiff claims, we have now to see whether he has established what according to the authorities he must establish, that the defendants acted maliciously and without reasonable and probable cause. Certain heads of proof of this were attempted at the trial; for instance, the plaintiff's refusal to sell to the defendants a pony and jutka, the institution by the defendants of the suit in which this attachment was made in a Court which would not ordinarily exercise jurisdiction over the plaintiff and lastly the fact that the plaintiff had borrowed from Nedungadi Bank at 12 per cent interest instead of continuing to borrow from the defendants as he had done in the past. In this Court the pony transaction has not been, relied on. It is not shown that the defendants choice of the Court in which they brought their suit was in any way unreasonable. The plaintiff's resort to the Nedungadi Bank instead of to the defendants for a loan is explained by the admitted fact that the defendants had refused to advance him more than they had already done. In these circumstances, these items of evidence are useless to establish malice.