1. This appeal arises out of a suit for damages for wrongful attachment of the tonga and pony of the plaintiff-respondent in execution of the decree obtained against the plaintiff's husband by the defendant-appellant.
2. There is a concurrent finding of the two lower Courts that the tonga belongs to the plaintiff and the learned counsel for the defendant-appellant has shown no good ground for interfering with that finding.
3. The law on the question of wrongful execution of process against property is laid down by their Lordships of the Privy Council in 17 Cal. 4361 at p. 442:
“The summary proceeding under S. 278 was taken by the respondent for the purpose of getting the, release of an attachment issued in a suit to which he was not a patty; and 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 his application maliciously, and without probable cause.
‘The appellants mainly relied upon the English case in 1 H. & C. 6212 which was cited as an authority for the proposition that a judgment-creditor is not responsible for the consequences of a sale, under a judicial order, of goods illegally taken in execution in satisfaction of his debt. 1 H. & C. 621 would have been an authority of importance had the law of execution been the same in India as in England, but there is in that respect no analogy between the two systems. 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 attachment in security 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. In the present case, by the terms of the perwana, no discretion was allowed to the officer of Court in regard no the selection of the goods which he attached; his only function was to secure under legal fence all bales of jute in the respondent's premises which were pointed out by the appellants. The illegal attachment of the respondent's jute on 28-11-1883 was thus the direct act of the appellants, for which they became immediately responsible 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.”
4. This Privy Council case was followed in 2 Rang. 1813 wherein A had brought a suit against B and obtained an order for the attachment before judgment of goods belonging to c, and it was held that this was a case in which a trespass to the goods having been committed by A, C had a cause of action against A and was entitled to recover from him damages without proving either an absence of reasonable and probable cause or malice in fact.
5. The law has been well summarized in Ratanlal and Dhirajlal's Law of Torts, Edn. 13 (1943), at pp. 207 to 209:
“A party to a suit is liable, though he acts innocently or mistakenly or inadvertently, if by his or his agent's or attorney's order the officer of the Court takes the goods of the wrong person, a stranger, in execution; 3 Bom. 744 …. Proof of malice is not necessary when the property of a stranger not a party to a suit, is taken in execution.”
6. It was, however, contended by the learned counsel for the appellant that the attachment was not wrongful. I am unable to agree with him.
7. The property belonged to the plaintiff Anjeerabai, and it was attached in execution of a decree of another person, viz. her husband. She had a right against all the world to possess it, and that legal right was violated by the defendant-appellant by attaching the property. Ratanlal and Dhirajlal in their Law of Torts, Edn. 13 (1943), say at pp. 4 and 5:
“The crucial test of a legally wrongful act or omission is its prejudicial effect on the legal right of another ……. Every infringement of a private right denotes that an injury or wrong has been committed, which is imputable to a person by whose act, omission, or forbearance, it has resulted.”
8. Damages have therefore been righty awarded to the plaintiff. The decision of the Court of first appeal is hereby upheld and this appeal is dismissed with costs.
9. Appeal dismissed.