P.B Mukharji, J.:— This is a suit for the recovery of the sum of Rs. 8,648-5-6 and for damages to the extent of Rs. 50,000 for wrongful attachment of goods. The plaintiff's case is that on March 26, 1947, the defendant executed a decree for the sum of Rs. 8,648-5-6 in Suit No. 1182 of 1946, wherein the defendant was the plaintiff and one Hem Raj Poddar was the defendant. In execution of that decree, the defendant is alleged to have trespassed into the rooms of the plaintiff and wrongfully caused the properties belonging to the plaintiff to be attached and sealed by the bailiff of the Sheriff inspite of protest. The plaintiff obtained release of the attachment by deposit of the sum of Rs. 8,648-5-6 with the Sheriff on March 27, 1947. The plaintiff claims to recover the said sum of money and also claims Rs. 50,000 as damages for wrongful attachment.
After the suit was filed, the plaintiff obtained an injunction restraining the defendant from withdrawing the said sum of money from the Sheriff in satisfaction of his decree obtained in the said Suit No. 1182 of 1946.
The defendant filed his written statement and the defence taken is that the goods attached were the goods of Hem Raj Poddar, the judgment-debtor in the said suit No. 1182 of 1946. He has denied that there was any trespass into the plaintiff's rooms or that there was any attachment of the plaintiff's goods. The claim for the recovery of Rs. 8,648-5-6 as well as for Rs. 50,000 is denied and disputed. There is an allegation in the written statement that this suit has been filed at the instance of Hemraj Poddar with a view to coerce the defendant to settle the decree obtained in the said suit No. 1182 of 1946.
The plaintiff, in the present suit, is the father of Hem Raj Poddar, the judgment-debtor in the said suit No. 1182 of 1946.
Mr. G.P Kar, appearing for the defendant, has argued that the suit is not maintainable in the absence of an averment either of malice or of want of reasonable or probable cause. He has argued that a suit for damages for wrongful attachment is not maintainable where the warrant of attachment was obtained under the due process of law in the said suit No. 1182 of 1946, unless malice is alleged or unless want of reasonable or probable cause is alleged. There is no allegation in the plaint either of malice or want of reasonable and probable cause. Mr. Kar's submission is that, even if the property belonged to a stranger and not to the judgment-debtor, no suit is competent by the owner of such properties unless be alleges malice or want of reasonable or probable cause.
The law makes a distinction between acts done without judicial sanction and the acts done under judicial sanction improperly obtained. If the goods are seized under a writ or warrant which authorises the seizure, the seizure is lawful and no action will lie in respect of the seizure unless the person complaining can establish a remedy by some such action as for malicious prosecution or malicious abuse of proceedings. If, however, the writ of warrant did not authorise the seizure of the goods seized, an action would lie for damage occasioned by the wrongful seizure without proof of malice. The fallacy of the argument of the learned counsel for the defendant, in my judgment, lies in the failure to make such distinction. But Lord Russell makes it clear, in delivering the judgment in Ramanathan Chetty v. Meera Saibo Marikar, that such distinction must be made. The warrant in this case authorised seizure of judgment-debtor Hemraj's goods and not the plaintiff's goods. A good deal of the argument was occupied with the form of the warrant and I propose to analyse the form to support the conclusion to which I have arrived.
The Warrant of Attachment, which is Ex. 4 in this suit, commands the Sheriff to attach the moveable property mentioned in the schedule given in the said warrant. The form of the warrant which is used here is material and its material provisions run as follows:—
To the Sheriff, etc.
Whereas the plaintiff abovenamed has applied for execution of the decree by attachment of movable property mentioned in the schedule hereto belonging to the defendant or wherever the same can be found within the local limits of the jurisdiction of this Court to the extent mentioned in the margin.
The warrant goes on to proceed to command the Sheriff to return the warrant with an endorsement certifying the date and manner in which it has been executed or why it has not been executed. Then follows the schedule which gives the list of movable properties belonging to the judgment-debtor. The question is that, in executing the decree under this warrant, is the Sheriff entitled to levy attachment on the goods not belonging to the judgment-debtor but to somebody else and then whether the owner of such goods on which attachment is levied can sue the judgment-creditor for wrongful attachment without any allegation and proof of malice or want of reasonable or probable cause? In other words, is such an attachment an act of the court or the act of the judgment-creditor?
Lord Watson delivering his judgment in Kissorimohun Roy v. Harsuhh Das observes that, in order to entitle the owner of the goods to recover full indemnity for the wrongful attachment of his goods, it is not necessary for the owner to allege and prove that there was either any malice or want of any reasonable or probable cause. It was pointed out there by Lord Watson that the authority of the English case of Walker v. Olding does not apply to India, because the law of execution in India, is not the same as in England. In England, the execution of a decree for money is entrusted to the Sheriff, an officer who is bound to use his own discretion and is directly responsible to those interested for the illegal seizure of goods which do not belong to the judgment-debtor. In India, warrants for attachments are issued on the ex parte application of the creditor, who is bound to specify the property which he desires to attach and its estimated value. The provision of O. XXI r. 11(2)(j)(ii) of the Civil Procedure Code requires the judgment-creditor to state in the application for execution the mode in which the assistance of the court is required and if attachment is asked he is to state the property which is to be attached. When that is done the court issues its process of execution under O. XXI r. 24 of the Civil Procedure Code. The Original Side of the High Court has made rules relating to execution and procedure in respect thereof supplementing the provisions of the Code of Civil Procedure. Those rules, so far relevant for the enquiry, are contained in Chap. XVII of the Original Side Rules. Chapter XVII, r. 10 provides the form of the application and the requirements. The practice on the Original Side is that, after obtaining the order of execution to issue, the applicant has to take out the writ of execution from the execution department of the court. He then lodges the writ with the Sheriff. The Sheriff then proceeds to execute the writ in the appropriate manner.
The difference in the law and procedure of execution in England and that which obtain in India lies in the responsibility of the Sheriff. Order 42, r. 14, R.S.C, prescribes the form which is to be found in Appendix H and the usual writ in England is fieri facias commonly known as writ of fi fa. The form set out in Appendix H commands the Sheriff in England to attach goods and chattels of the judgment-debtor in his bailiwick, but there is no specification or schedule of goods as in India. Order 42, r. 12, R.S.C, requires the party or his solicitor issuing the writ of execution to file a præcipe for that purpose. But the præcipe does not require the specification or identification of the goods to be attached. The forms of præcipe are given in Appendix G and do not require specification or identification of the goods to be attached. In England the Sheriff, therefore, has to act on his own discretion in the absence of an inventory or specification of the goods to be attached. But in India there is no such discretion. In India, as in this case, the Sheriff has in the warrant of attachment a schedule of the goods to be attached given on behalf of the judgment-creditor and he is accompanied by an agent of the judgment-creditor who actually identifies the judgment-debtor's goods at the time of attachment. Indeed, it has been held that, in England, the solicitor for the execution creditor has not even any implied authority to direct the Sheriff to seize any particular goods in pursuance of a, writ of execution. In Smith v. Keal Manisty, J. at p. 344 says:—
It is no doubt the duty of the solicitor to inform the Sheriff who the execution debtor is, but when he has performed that duty, the responsibility rests on the Sheriff of levying according, to the writ.
Baron Pollock at p. 348 of the same report remarks that it would be most prudent for the solicitor to say to the. Sheriff:—
It is your business and not mine to ascertain what goods are available for seizure under the execution, and I shall not advise you upon the matter at all.
Jessel M.R, with his characteristic clarity, put the proposition beyond all doubt in hearing the appeal and at p. 351 of the same report observes:
The Sheriff must ascertain himself whether the goods he seizes are the judgment-debtor's goods.
Lindley L.J at p. 354 observes to the same effect:—
It is the Sheriff's business to find out what goods to seize, and if he seizes the goods of the wrong person such person has his remedy against the Sheriff; but upon what principle can the innocent execution creditor be made liable?
The law in India is just the opposite. The Sheriff in India is left with no discretion. It is the execution-creditor who is required by law, as I have stated above, to specify and identify the goods to be seized, and the “innocent” man in India, is not ordinarily the execution-creditor but the Sheriff, if goods of a wrong person, and not of the judgment-debtor, are seized. In other words, if the seizure of the goods by the Sheriff in attachment turned out to be the goods not of the judgment-debtor, the responsibility is of the execution-creditor in India and he is answerable to the true owner of the goods seized for damages for wrongful attachment.
Therefore, it cannot be necessary for the true owner to allege either malice or want of reasonable or probable cause. In the first place, he would not ordinarily have the knowledge to make any averment of any malice or want of reasonable or probable cause and to require him, in such a case, to allege and prove-malice or want of reasonable cause would be absurd. In the second place, an owner of the goods is entitled, in my opinion, always to come to the court and maintain that his goods have been wrongly seized or confiscated. He is not concerned with malice or want of reasonable or probable cause. Indeed, even if his goods were seized under a bona fide mistake, such bona fide mistake is no defence to an action for damages for wrongful attachment. It will be remarkable law, indeed, if it requires such an owner of the goods, who was not a party to the decree or to the execution-proceedings, to prove malice or want of reasonable or probable cause on, the part of those who have taken away his goods. It is enough that his goods have been taken away without any lawful justification, i.e, wrongfully. He needs prove no more. I am, therefore, unable to accede to the argument of the learned counsel for the defendant that, in a suit for damages for wrongful attachment of property, the plaintiff has to prove malice or want of reasonable or probable cause.
The learned counsel has relied on the decision of this Court in Bhupendra Nath, Chatterji v. Trinayani Dasi. That was a suit for damages for improperly obtaining an interlocutory injunction. The principles in those cases are, in my opinion, entirely different from the principles which govern a suit for damages for wrongful attachment by the true owner of the goods against the execution creditor. That case clearly proceeded on the basis that the injunction was an act of the court as, indeed, it was. An interference with one's proprietory right by such injunction was not an act of the nature of trespass. Indeed, Mukherjea, J. makes it quite clear even in that case that, if the act is really an act of the party, and not an act of the court, it will be actionable as trespass. The learned counsel for the defendant has also relied on the case of Rama Row v. Somasundaram Asary I say that case has no application here. That also was a case for damages for obtaining an ad interim injunction. There also their Lordships approved of the statement of Lush, J. in Smith v. Sydney to the effect—
the authorities distinguish between an act of the court and an act of the parties, and it is only when the proceedings are set aside on the latter ground that the party is made a wrongdoer.
The argument of the learned counsel for the defendant starts with the false premise that the nature of the cause of action in a suit for damages for the malicious abuse of the process of the court, including a suit for malicious prosecution, or in any “action on case” is the same as in a suit for damages for wrongful attachment of property. In the former, malice and/or want of reasonable and probable cause is the very gist and foundation of the action. In the latter, trespass is the gist and foundation of the action. It is only in the former case, where the proceeding or the process of the court which was abused was wholly void or illegal, that the plaintiff may have a cause of action in trespass, in which case again malice need not be alleged or proved. Halsbury's Laws of England (Hailsham Ed.), Vol. 22, pp. 27-28. The view that I take is supported by Salmond's statement in the 10th Edition of the Law of Torts edited by Dr. Stallybrass at pp. 627-28.
In my judgment, and for the reasons I have stated, I consider wrongful attachment of the goods in execution in India is the act of the execution-creditor and not of the court, and in such a case the true owner of goods need not allege or prove malice or want of reasonable or probable cause. The order of attachment is an act of the court, but is not the cause of the wrong or damage, because it only directs attachment of the judgment-debtor's and nobody else's goods. The wrong or the damage is caused by the act of the party (i.e, the judgment-creditor or his agent) in India, namely, the wrongful or excessive execution of that order.
The following issues have been raised:—
1. Did the defendant cause any property of the plaintiff to be attached and sealed by the bailiff of the Sheriff on March 28, 1947? If so, was the same wrongful?
2. Has the plaintiff suffered any, and, if so, what damages by reason of the said wrongful attachment as alleged in para. 3 of the plaint? Is the defendant liable therefor?
3. To what relief, if any, is the plaintiff entitled in this suit?
Issue No. 1. The central theme in dispute concerns the title to the goods attached. The question is whether the goods attached belonged to the plaintiff or to Hem Raj Poddar, the plaintiff's son, and judgment-debtor. The onus of proving that the goods attached belong to the plaintiff is on the plaintiff. It is necessary, therefore, to say how and in what manner the plaintiff has discharged that onus.
[The learned judge after discussing the evidence proceeded as follows:—]
For these reasons I am unable to rely on the testimony of the plaintiff and am of the opinion that he has failed to discharge the onus of proving his title to the goods attached, and has failed to prove that the attached goods belonged to him.
I, therefore, answer issue No. 1 in the negative.
Issue No. 2. This issue arises only if the attachment was wrongful. As I have held that the attachment was not wrongful, this issue does not arise for determination. Even if it did, the proof of damage would have been very meagre indeed. There is no claim for damage to reputation. The damage that is claimed in para. 3 is damage due to wrongful attachment of plaintiff's properties. According to plaintiff's evidence, the value of goods attached was only Rs. 500 to Rs. 700 and there was hardly, if at all, any inconvenience to the plaintiff (Qs. 342 to 343 and Q. 90) and it is also to be noted that the attachment was levied on the 26th but removed on March 27, 1947, and did not last for twenty-four hours and the goods attached were not of such description as could possibly cause any tangible damage.
Even if I had held, therefore, that the attachment was wrongful, I would have awarded only nominal damage.
Having regard to my finding on issue No. 1 my answer to issue No. 2 is that this issued does not arise. As the attachment was not wrongful according to my opinion the plaintiff cannot claim, any damage.
Issue No. 3. The only other question is whether the plaintiff can claim refund off the sum of Rs. 8,648-5-6, which he deposited with the Sheriff. The plaintiff's payment under the circumstances, which I have found under Issue No. 1, cannot be said to be a payment under the coercion of wrongful attachment of his property, so that the defendant could be required to return the money under s. 72 of the Indian Contract Act. This principle was settled and laid down by the Privy Council in Kanhaya Lal v. National Bank of India, Ld.. The payment in this case, therefore, by the plaintiff can only be regarded as voluntary and the plaintiff is not entitled to return of the said money.
In my judgment, and for the reasons stated above, this suit fails on the merits and is dismissed with costs. The injunction is dissolved.
Certfied for two Counsel
Suit dismissed with costs. Injunction dissolved.
Attorney for plaintiff: G. Bagaria.
Attorney for defendant: B.M Bagaria.
P.R.D