MADAN LALL Vs. LAKSHMI NARAIN

JUDGEMENT

(1.) This is an appeal by the defendant against the appellate decree of the learned Subordinate Judge of Monghyr affirming the decision of the Munsif decreeing the suit of the plaintiff for damages for his malicious arrest in execution of an ex parte decree passed by the Small Cause Court of the Second Munsif of Monghyr under circumstances which are somewhat peculiar. The plaintiff in the Small Cause Court suit instituted his suit on the foot of a handnote which was executed jointly by the father of the respondent and one Basiruddin. I was informed that Basiruddin was the principal defendant who had taken the money, but the father had stood as his surety and became liable as a joint executant on the handnote. The suit which was instituted by the appellant was decreed by the Small Cause Court Judge ex parte, as stated already. Thereafter the appellant took out execution of the ex parte decree by asking for warrant of arrest against the father and later on against the son, that is to say, the respondent. When the respondent was arrested while in service, he was produced before the Munsif in the execution department and on hearing his objection he was released. The order of release is not before me but it is common ground that the learned Munsif in the execution department came to the conclusion that the decree-holder had no right to arrest the respondent in execution of this decree which was interpreted as negativing any personal liability on him. The respondent then instituted the present suit for recovery of damages for malicious arrest asking for a decree for a total sum of Rs. 135, namely Rs. 125, as damages, and costs and Rs. 10 as costs incurred in getting his release and some other incidental expenses.

(2.) The principal respondent's attack on the facts was that the decree in the Small Cause Court suit was obtained behind his back fraudulently and without service of notice to him. He sought to make out that in this way he was prevented from putting forward his defence before the Small Cause Court. But the Courts below have concurrently come to the conclusion that the allegation of the respondent that summons was not served on him was false. Therefore it must be taken as established that the respondent with a notice of claim against him deliberately absented himself from contesting the action and allowed the decree to be passed against him. The decree of the Small Cause Court is still in existence and has never been sought to be set aside.

(3.) The only question which really arises for determination in this ease is whether the conclusions of the lower Courts to the effect that the appellant's action in getting the respondent arrested was without reasonable and probable cause and malicious can be supported in law. Before dealing with this matter I ought to deal with a preliminary objection which was raised by Mr. K.N. Lall appearing on behalf of the respondent. His objection was that the appeal was not properly valued because it was valued at Rs. 125 only whereas the decree actually prepared by the trial Court (which was affirmed by the Appellate Court) shows that the decree was passed for a sum of Rs. 135. I asked the parties to show me any finding of fact of either of the Courts below by which they have given reasons for awarding the plaintiff a sum larger than Rs. 125.