KEDARNATH TULSHIDAS Vs. BIHARILAL JAGAMAL

JUDGEMENT

(1.) This suit has been filed by the plaintiffs to recover a sum of Rs. 1,05,000 by way of damages on the ground that an attachment before judgment and injunction were applied for by the defendants in this suit in suit No. 2145 of 1921 filed by the defendants against the plaintiffs on insufficient ground, that such application was made by the defendants wrongfully and maliciously and without reasonable and probable cause, and that by reason of such wrongful application the plaintiffs suffered damage in their credit and reputation and have been put to trouble and inconvenience and expenses.

(2.) Various issues were raised by Mr. Munshi for the defendants. The first issue is whether the plaint discloses any cause of action. Mr. Munshi haw asked the Court to try this issue as a preliminary issue in order to save the costs and expenses of inquiring into the merits if the first issue is decided in the defendants favour. Mr. Munshi has contended that the plaint does not disclose any cause of action on two grounds: first, that no attachment was in fact levied and that mere procuring of an order for attachment before judgment does not of itself afford a cause of action for damages, and, secondly, that the order of attachment in the original suit was confirmed and a summons to vacate the said order was discharged by the learned Chamber Judge who heard it; that it is an essential part of the cause of action in a suit for damages for the abuse of civil proceedings that the proceeding in which the process complained of is taken out should have terminated in favour of the plaintiff or that the particular process complained of has been superceded or discharged.

(3.) In my opinion the defendants are right in both of their contentions on this point, As to the first point, it is admitted by the plaintiffs that no attachment was in fact levied but the plaintiff's counsel contends,-although the cause of action is not so stated in the plaint,-that the very fact of the Court's bailiff going to the shop of the plaintiffs with a view to enforce the warrant of attachment was sufficient to cause damage to the credit of the plaintiffs, and that the fact of the bailiff's going in execution of the order, which, the plaintiffs say, was obtained maliciously and without probable and sufficient cause, was an abuse of the process of the Court, and that the plaintiffs need not allege anything further to entitle them to damages for the said act. In paragraphs 12, 13 and 14 of the plaint, the plaintiffs contend that they had suffered damage by reasonof the wrongful application made by the defend ants for attachment beforejudgment. Even assuming that the plaintiffs are now entitled to prove that the bailiff went to the shop to enforce the warrant of attachment and that to prevent such attachment moneys were paid by a relative of the plaintiffs, as stated in the plaint, the said act of the bailiff does not give any cause of action to the plaintiffs. In Rama Ayyar V/s. Govinda Pillai,(1915) I. L. R. 39 Mad. 952, attachment was not in fact levied on the plaintiff's moveables, but the reason why it was not levied is not stated in the facts of the case. Probably, there also the plaintiff paid the security, which is always mentioned in every warrant of attachment of goods, and for that reason the attachment was not levied. From the judgment of Mr. Justice Napier it appears that the bailiff did go to attach the moveables in pursuance of the warrant of attachment in that case. The only reason, therefore, to my mind, why the goods were not attached must have been that the plaintiff there gave security. But even if that was not the case the plaintiff in that suit did put his cause of action on the ground of the defendant's action in applying for attachment before judgment and " coming to attach his moveables", and the Court there held that procuring an order for attachment before judgment however maliciously did not of itself afford a cause of action for damages. In the present case also what happened, according to the plaintiff, was that the bailiff went to the shop of the plaintiffs to attach and that in fact no attachment was levied as a relative of the plaintiffs paid the amount mentioned in the warrant as being payable by the plaintiffs as security on his failing to show cause to the contrary. The warrant of attachment here does not order the plaintiffs to pay security and in default of such payment order attachment of the goods of the plaintiffs. As pointed out in Lotlikar V/s. Lotlikar, (1881) I. L. R. 5 Bom. 643, where a similar provision in the old Civil Procedure Code was considered by the Appeal Court, the construction of the usual order of attachment before judgment is this. The defendants are called upon to furnish security for the fulfilment of any decree that the plaintiffs might obtain against them or to show cause on any day fixed in the order why security should not be furnished and to his direction is appended an order for provisional attachment as provided in the form at the end of the Civil Procedure Code. Mr. Justice West, in his judgment at p. 644, says that an order made under Section 484, which is similar to the provision for attachment before judgment in the Code of Civil Procedure, 1908, might mean "an attachment to be made conditionally on the security not being furnished or cause shown by the prescribed day, or it might mean an immediate attachment of a provisional kind conditioned to become plenary if security should not be furnished, or cause shown according to the terms of the order." Mr. Justice West held that the form showed that the latter was the intention of the legislature, and he goes on further to hold that if the attachment had been actually made it would in the first instance have been only a temporary one and the defendants showing cause on the day fixed in the order would have had it set aside, and that to prevent the discredit and inconvenience that would arise from the attachment they took the only step open to them, namely, to pay the amount of security mentioned in the order. As Mr. Justice West observes (p. 644): " The order for attachment was supplementary to that for furnishing security, and the order for furnishing security was itself, if the defendants chose, dependent on their failing to show cause on [the day fixed]. Primarily, therefore, they had till that date to prepare their reasons, and the additional order for intermediate attachment could not deprive them of, that right. Neither, therefore, should the giving of security to avoid the pressure of that order." These observations of Mr. Justice West clearly show that the giving of the security before showing cause as to whether security should be given or not is entirely optional with the plaintiff and that if he does give it, it is merely to avoid the discredit and inconvenience that might arise from the attachment.