MAHOMED ANWARUL HUQ SAHIB Vs. MASRINIVASA IYENGAR

JUDGEMENT

(1.) Into the very intricate details of this litigation, it is unnecessary to enter. The facts are clearly set forth in the petition filed in the lower Court by the present appellants dated 11 April 1921. The short question to to be decided in this appeal is whether the alleged loss incurred by the appellants by reason of the private sale of the property effected by them is a loss that can be made good, by an order under Section 144, Civil P. C. The appellants were not under any legal obligtion to pay the amount into Court. As a matter of abundant caution, they sold the property by private contract, raised money and paid it into Court under Order 21, Rule 89. They deposited the amount on the footing that they were likely to lose the appeal which was then pending. If they were successful they would be entitled to get the property back without any payment into Court. The damages, therefore, that are claimed are very remote and cannot be said to follow from the act of the respondent.

(2.) In regard to the mesne profits claimed, there is no allegation in the petition that the respondent took possession of the property and it is very improbable that he was in possession because the sale was set aside before the time elapsed for confirmation. In these circumstances we do not think that there is any ground for the contention that the appellant is entitled to mesne profits.

(3.) A third claim was advanced before us and it is this. It is said that for wrongful attachment the appellants are entitled to some damages. In our view such damages do not come within the purview of Section 144. Sub- Section 2 clearly states that it is not open to a party to institute a suit for purpose of obtaining any restitution which could be obtained by application under Sub-section 1. It is impossible to uphold the contention that in respect of damages for wrongful attachment, a separate suit will not lie.