SATISH CHANDRA BANERJEE Vs. MUNILAL

JUDGEMENT

(1.) In this ease the plaintiff appeals from the judgment of my learned brother Panckridge, J., dismissing his suit. It seams that the defendants brought a suit against the present plaintiff at Amritsar claiming a sum of about Rs. 4,000 and, in December 1928, they applied to the learned Subordinate Judge at Amritsar for an order under Order 38 of the Schedule to the Civil Procedure Code, namely, for an order for attachment before judgment. The learned Subordinate Judge made the order for attachment before judgment ex parte as these orders invariably are, and, on 11 January 1929, the order having been transmitted to Calcutta for execution, the present plaintiff's Calcutta shop with the articles therein was attached. The present plaintiff thereupon paid the necessary amount of money into Court, and on 14th January 1929, the attachment was in that way released. Thereupon the present plaintiff continued defending the suit at Amritsar and denied that he was under any liability to the plaintiffs in that suit; not only that, but he applied at Amritsar that the learned Judge should vacate the order for attachment before judgment. The learned Judge however did not make any such order. He would seem to have adjourned the hearing of that application, until the trial of the suit and he gave judgment on 8 January 1930 in the suit. He decreed the suit in full so that the present plaintiff was ultimately held to have been liable all the time. Thereupon it is conceded that under the order of Amritsar Court the money which the present plaintiff had put into Court to get rid of the attachment was paid over to the plaintiffs in that suit in satisfaction of the decree which they had obtained. At the time of giving judgment, the learned Subordinate Judge said that, in view of the fact that the said suit was being decreed in full, it was not necessary to go into the application for vacating the order for attachment before judgment. In this he may have been wrong but not only did ho not make any order vacating the order made for attachment before judgment but that attachment having resulted in money paid into Court the proceeds of the attachment were applied and utilised for the purpose of meeting the decree. Without appealing from these orders the plaintiff brings this suit on 11 November 1930 in this High Court and he make3 numerous allegations in his plaint to the effect that the object of the whole suit in Amritsar was to injure the present plaintiff which as the suit succeeded is absurd, Ho also says that the order for attachment before judgment was obtained by making untrue allegations that the plaintiff would make away with the stock-in-trade which he had in Calcutta and so forth and he asks for damages to the extent of Rs. 25,000 of which Rupees 15,000 is said to be for "loss of reputation" and Rs. 5,000 for mental auxieties and troubles owing to the attachment having been made of his shop between 11 and 14 January 1929.

(2.) Now this ease having been commenced in this Court, it appears that the defendant Lala Munilal asked that two issues might be settled and tried before the other issues in the case: namely, (1) whether the plaint disclosed any cause of action, and (2) whether the suit was barred by limitation. I cannot find that any proper order was made directing such issues to be framed and triad before the further issues in the case. It appears however that the matter came on before Panckridge, J., on 19 March 1931 and be begins his judgment by saying: The issue that I have been asked to decide in this ease is whether the plaintiff's suit is barred by limitation.

(3.) He states the cases of the plaintiff and of the defendant upon the meaning of Art. 29 and it rather looks as if both parties had gone before the learned Judge and were agreed that the one question which needed decision was the question of limitation, There has been apparently some controversy as to the exact meaning of the words employed by Art. 29 of the Schedule to the Limitation Act and upon this controversy there is plenty of materials in decided cases and the parties seem to have addressed the learned Judge at length upon that somewhat troublesome question. The learned Judge in the end came to the conclusion that this plaint was framed for damages for wrongful seizure of moveable property under legal process and in his view whether the ease that the plaintiff was trying to make out was a case of wrongful and malicious prosecution or was a case of erroneous trespass on goods without authority, Art. 29 equally applied. He thought that this position was established by certain observation in the case of Madras Steam Navigation Co. Ltd. V/s. Shalimar Works Ltd. [1915] 42 Cal. 85as well as by what was laid down in Pannaji Devi Chand & Co. V/s. Sanaji Kapur Chand A.I.R. 1930 Mad. 635. His attention was called to another view taken in the case of Arjun Biswas V/s. Abdul Biswas A.I.R. 1921 Cal. 774. But as he preferred the view that had been taken in the Madras Steam Navigation Company's case [1915] 42 Cal. 85 he dismissed the suit entirely on the ground of limitation.