SAMANTHALA KOTI REDDI Vs. POTHURI SUBBIAH

JUDGEMENT

(1.) Plaintiffs had lent money on a mortgage to one Sankariah. Apprehending that this man was about to dispose of his property, they filed a suit in the District Munsif s Court and obtained an order for attachment of certain moveable properties belonging to him. In the mean-time, a distraint upon the properties had been effected for arrears of revenue. The Village Munsif sold them and after remitting to the Taluk treasury the amount recoverable from Sankariah, paid the balance over to him. This was after the attachment by the District Munsif. The plaintiffs sue the Village Munsif who is the first defendant in this suit for damages, alleging that the 1st defendant colluded with Sankariah and paid the balance of the sale- proceeds to him. The District Munsif was of opinion that the 1st defendant was not aware of the attachment by the Civil Court and dismissed the suit. The Subordinate Judge has found that the 1st defendant was aware of the attachment by the Civil Court and that he fraudulently paid over the balance of the sale-proceeds to Sankariah. An attempt was made in this Court to question the correctness of this finding. But I see no reason for not accepting the conclusion of the Subordinate Judge.

(2.) The first additional issue in the case was, whether the 1st defendant is entitled to notice as required by Section 80 of the Civil Procedure Code before action was brought. The Subordinate Judge has come to the conclusion that as the Village Munsif acted fraudulently Section 80 has no application.

(3.) It is not disputed that the action of the 1st defendant was within his powers as Village Munsif. The proclamation for the arrears, the sale of the property and the payment of the balance to the defaulter were all acts which as Village Munsif he was competent to do, but, on the finding of the lower Appellate Court, there can be no doubt that, in performing these duties, the 1st defendant was acting with malice. The point for decision is, whether in consequence of this want of bona fides, the 1st defendant has forfeited his right to notice before action. Although the case was very fully argued on both sides, as we thought that this was a matter in which Government was interested, we requested Mr. Ramesam, the Government Pleader, to assist us as amicus curi? and we are very much indebted to him for his assistance.