FIRM MANGAL CHAND-PARAMSUKH DAS Vs. MTZAINAB BIBI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for damages. The plaintiff's case was that the defendant in execution of a, decree against her husband Abdul Rashid and others attached a hand-loom belonging to her on 24 of May 1924 and thereby deprived her of its use till 1 of September 1924, when, on objection being raised by her, the attachment was released. She alleged that she could not work the hand-loom for three months and eight days and suffered a loss of Rs. 98. The defence was an assertion that the hand-loom belonged to the judgment- debtor and a plea that the attachment was bona fide and the damage claimed was remote and excessive. The denial of the plaintiff's ownership of the hand-loom does not appear to have been seriously pressed in the Courts below, both of which have assumed that the hand-loom belonged to the plaintiff. In the grounds of appeal before me there is no suggestion that was not so. The main contention on behalf of the defendant now is that inasmuch as he had acted in a bona fide manner and the plaintiff has failed to prove any malice or any want of reasonable and probable cause her claim for damages should not have been allowed. The learned advocate for the appellant relied on the cases of Thakdi Hajji V/s. Budruddin Sahib (1906) 29 Mad 208: Surajmal V/s. Manekchand (1904) 6 Bom LR 704; and Nanjappa Chettiar V/s. Ganapathi Gounden (1911) 35 Mad 598.

(2.) In the last mentioned case it was remarked: "There is no reason for departing, when a suit is filed for damages, from the well-established rule that when the plaintiff's grievance arises directly from the order of a Judicial Tribunal thought it is moved thereto by a private party; the defendant would not be responsible in damages unless he had acted with malice as well as without reasonable and probable cause," All these three cases, however, were cases where damages were claimed against a person who was a party to the proceeding. In my opinion there is a clear distinction between cases of that kind and the cases where a decree- holder attaches property belonging to a third party and wrongfully deprives him of its use in consequence of such attachment. The innocent third party would be entitled to damages on account of the loss which he suffers by the wrongful attachment without proving any malice or any absence of reasonable and probable cause. This was the view expressed by this Court as early as 1873 in the case of Raynor V/s. Sungheer Singh (1873) 5 NWP 211. The learned Judges remarked: "A judgment creditor is responsible in damages to any person whose property he wrongfully causes to be attached in execution of his decree without proof of mala fides."

(3.) A similar view was expressed by the Calcutta High Court in the case of Soobjan Beebee V/s. Shaikh Shureeutoollah (1869) 12 WR 329 and in the case of Kanaye Pershad Bose V/s. Hur Chand Manoo (1870) 14 WR 120.