QAIM HUSAIN Vs. LPIRBHU LAL

JUDGEMENT

(1.) This second appeal arises out of a suit for damages for wrongful attachment. The defendant-appellant Qaim Husain attached a crop belonging to one Jasan on 5 October 1932 in execution of a decree against him. The defendant-respondent Rahmatullah was appointed to take charge of the produce of the crop. I understand that the crop was reaped and put on the threshing-floor. An objection to the attachment was taken by Pirbhu Lal plaintiff-respondent who alleged that the crop had been sold to him on 8 September 1932. It was eventually found that Pirbhu Lal's allegation was correct. In the meanwhile, the crop had again been attached in order to meet a demand for canal dues. This attachment was presumably made under the orders of the Collector. Under the provisions of Northern India Canal and Drainage Act, arrears of canal dues can be recovered in the same way as arrears of land revenue. Pirbhu Lal after obtaining a decree or order that the property had been wrongfully attached instituted the suit which has given rise to this appeal in order to recover damages and has obtained a decree from the Courts below. In second appeal it was argued in the first place that the plaintiff in order to establish a claim to damages had to prove that the attachment was malicious and without reasonable and probable cause. In support of his argument learned Counsel referred to the rulings in Poonabai V/s. D.B. Seth Ballabhadas (1920) 7 A.I.R. Nag. 116, Nanjappa Chettiar V/s. Ganpathi Gounden (1912) 35 Mad. 598 and Palani Kumarasami V/s. Udayar Nadan (1909) 32 Mad. 598, but it seems to me that the question is concluded by the decision of their Lordships of the Privy Council in Kissorimohun Roy V/s. Harsukh Das (1890) 17 Cal. 436 Their Lordships said: It does not appear to their Lordships that, in order to entitle him to recover full indemnity for the wrongful attachment of his goods, the respondent is bound to allege and prove that the appellants resisted applications maliciously, and without probable cause.

(2.) In that case, an application had been made to the Court that the attachment was illegal and had been opposed. Their Lordships pointed out that the appellants relied mainly upon the English case in Walker V/s. Olding (1863) 1 H. & C. 621 and then said that the case was not a good authority for the law applicable in India because in India the decree-holder himself took the responsibility of pointing out the property to be attached, whereas in England the sheriff was bound to use his own discretion and was directly responsible to those interested for the illegal seizure of goods. There can be no doubt I think, in view of the decision in Kissorimohun Roy V/s. Harsukh Das (1890) 17 Cal. 436 that it is not necessary in a case of wrongful attachment to prove malice and the absence of reasonable and probable cause. The second argument addressed to me by the appellant is that he is not responsible for the loss of the plaintiff-respondent's property because that loss did not in any way arise out of the wrongful attachment. In reply to this argument learned Counsel for the respondent has referred to the cases in Bishambhar Nath V/s. Gaddar (1911) 33 All. 306 and Goma Mahad patil V/s. Gokaldas Khimji (1873) 3 Bom. 74. Those were eases in which there had been a wrongful attachment and the attached property had been stolen when in the custody of the bailiff of the Court. In so far as the case of this Court is an authority, I as a single Judge must follow it, but the case is authority only for the proposition that a person who induces a Court to make a wrongful attachment is liable for the value of the goods attached if they are stolen while in the custody of the bailiff of the Court. They are not strictly authority for the proposition that a person who induces a Court to make a wrongful attachment is liable for the loss of the goods if they are subsequently attached under another order of that or some other Court and are sold and lost to the owner of them. Learned Counsel for the plaintiff- respondent relies particularly upon the following passage in the judgment of the single Judge of this Court which was afterwards upheld in a Letters Patent appeal: It may be conceded that the theft or disappearance of the plaintiff's crops while under attachment was not in any sense the consequence of the wrongful attachment by the defendant. The fact remains that the plaintiff has suffered a loss for which he is entitled to compensation. His crops were wrongfully attached by the defendant-appellant. He is entitled to get back his crops or their value if the crops themselves are not available. The plaintiff had a complete cause of action at the date of the wrongful attachment and his right to the relief he was entitled to was not impaired by the subsequent occurrences for which he was not responsible : see Bishambhar Nath V/s. Gaddar (1911) 33 All. 306 at p. 307.

(3.) Although I am bound by the ultimate decision of the Court, I am not, I conceive, bound to accept all the arguments upon which that decision is based or all the propositions stated in the course of those arguments. I would however hesitate to differ even from the arguments or observations if it did not seem to me that they are contrary to those expressed by their Lordships of the Privy Council in Kissorimohun Roy V/s. Harsukh Das (1890) 17 Cal. 436. Their Lordships said: The illegal attachment of the respondent's jute on 28 November 1883 was thus the direct act of the appellants, for which they became immediately responsible in law ; and the litigation and delay, and consequent depreciation of the jute, being the natural and necessary consequences of their unlawful act, their Lordships are of opinion that the liability which they incurred has been rightly estimated at the value of the goods upon the day of the attachment.