1. This is an appeal on behalf of the Defendant in an actionfor damages for what has been described as malicious abuse of judicial process.The circumstances under which the claim has been preferred, have not formed thesubject of serious controversy in this Court, and may be briefly narrated. Onthe 3rd June 1901, the predecessor of the Plaintiff commenced an action forrent against the Defendant for the years 1307 and 1308, F.S. The substantialdispute between the parties related to the rate of rent annually payable; theDefendant pleaded that the rent was much lower than what the Plaintiff haddemanded, and that whatever was lawfully payable had been duly paid. The Courtof first instance overruled the defence and decreed the suit. Upon appeal, theSubordinate Judge reversed that decision and dismissed the suit. On appeal tothis Court, the Plaintiff-Appellant asked for leave to withdraw from the suit,with liberty to bring a fresh suit on the same cause of action. On the 2ndMarch 1906, the application was granted and the following order was recorded :"The application is allowed on condition that the Appellant pays to theRespondent the costs incurred by him in this litigation, including the costs ofthis Court, within six weeks of the arrival of the record in the lower Court.If such costs are not paid within the time aforesaid, this appeal will standdismissed with costs." The records were sent down in due course and appearto have been received in the lower Court on the 17th June 1906. Meanwhile, thePlaintiff, who had already instituted a suit on the 8th February 1906, for recoveryof the arrears of rent for the years 1310 to 1313, deposited the money in Courton the 23rd May 1906. No notice of the deposit was given to the Defendant, andit has now been ascertained that the entry of the payment, as made in the CourtRegister, was inaccurate and misleading, because the names of the parties asPlaintiff and Defendant were interchanged. There is some evidence to show thatone of the officers of the Plaintiff verbally informed the Defendant that thedeposit had been made : but, in the events which had happened, and in view ofthe fact that the records had been removed from Champaran to Chapra, it was notpossible for the Defendant, to whom the challan had not been shown, toascertain whether the money had actually been deposited, and to withdraw thesum from the Court. The result was that, when the suit commenced on the 8thFebruary 1906 for realisation of the arrears of the years 1310 to 1313 came onfor trial, the Defendant objected that, as the Plaintiff had not carried outthe order of the High Court in the appeal in the previous suit for rent, thesubsequent suit could not be entertained. This objection prevailed, and thesuit was dismissed on the 31st May 1906, as the Plaintiff was unable to satisfythe Court that she had deposited the money in accordance with the order of thisCourt. She then appealed to the District Judge and contended, not that thedeposit had been made in time, but that, as the order of the High Courtreferred to a suit for rent for an earlier period, failure to comply with thatorder could not bar the subsequent suit, and the District Judge, on the 20thNovember 1906, gave effect to this contention. The Defendant then appealed tothis Court and contended that, as the order of the High Court in the previoussuit had not been carried out, the result was that the appeal preferred to thisCourt on that occasion stood dismissed, and the decision of the SubordinateJudge, as to the rate of rent, was in effect confirmed : consequently the trialof the question of the rate of rent was barred by res judicata. This Court, onthe 5th April 1909, directed an enquiry into the question, whether the order ofthe High Court in the previous suit had been carried out in time. The lowerCourt, upon investigation and upon evidence adduced by the Plaintiff reportedthat the deposit had been made on the 23rd May 1906 before the expiry of thetime allowed for the payment of the money. On receipt of the report, this Courtheld, on the 19th April 1910, that the previous suit had been withdrawn and noquestion of the res judicata arose for consideration. Meanwhile, on the 6thJune 1907, that is after the adjudication by the Courts below that the costshad not been paid in time and the appeal to this Court, consequently, stooddismissed with costs, the Defendant as decree-holder applied for execution ofthe decree for costs throughout that litigation. The Plaintiff asjudgment-debtor entered appearance and objected to the execution on the groundthat no notice, under sec. 248 of the Civil Procedure Code of 1882, had beenserved and that the whole of the decretal amount had been already deposited inCourt. The execution Court overruled the first objection on the ground that theorder of this Court, made on the 2nd March 1906, was conditional and could beperformed within six weeks of the arrival of the records in the Court below,that is, within six weeks from the 17th June 1906, so that there could be nodecree for the Plaintiff to execute till the 29th July 1906, that is, withinone year of the date of application for execution. As regards the objection onthe merits, the Court directed an enquiry, and the pleader for the Plaintiff,whose services were specially retained to make the investigation, satisfied theCourt that the deposit had been made. The result was that, on the copy of thechallan produced in Court for the first time, on the 3rd August 1907, the Courtheld that the deposit had been made and dismissed the application forexecution. Meanwhile, however, events had happened which have culminated in thepresent litigation. Immediately on the presentation of the application forexecutions, the Court, at the instance of the Defendant, as decree-holder,attached 14 bighas of land, on which there was standing crop of indigo. Theattachment apparently continued from the 6th June 1907 to the 5th August 1907,and the judgment-debtor, the present Plaintiff, does not appear to haveintimated to the Court that the crop was liable to deterioration. On the 26thSeptember 1907, the Plaintiff commenced the present action for recovery of Rs.600 from the Defendant as damages for malicious abuse of legal process. Hiscase was that the Defendant maliciously took out execution for recovery ofcosts, which, he knew, had already been deposited in Court; that the wrongfulattachment, in the course of the execution proceedings, had resulted in thedestruction of his indigo crop, and had also affected his credit. The Defendantrepudiated the allegation of malice and contended that he acted in good faith,that there was reasonable and probable cause for the attachment, and that thedamage of the crops alleged by the Plaintiff was not the approximate result ofthe attachment effected at his instance. The Court of first instance found infavour of the Defendant and dismissed the suit. Upon appeal the District Judgehas decreed the claim. He has held that the attachment was malicious andunlawful, and he has given the Plaintiff a decree for Rs. 290, namely, Rs. 179as value of indigo lost, Rs. 53 as litigation expenses, and Rs. 58 as exemplarydamages. The Defendant has now appealed to this Court, and, on his behalf, thedecision of the District Judge has been assailed substantially on threegrounds; namely, first, that upon the admitted facts, the suit is notmaintainable; secondly, that, upon the facts found by the District Judge therewas reasonable and probable cause for the attachment effected by him, and,thirdly, that the damages have been awarded on principles erroneous in law. Insupport of the first objection taken by the Appellant, it has been contendedthat it is not an actionable wrong to institute civil proceedings withoutreasonable and probable cause even if malice be proved, for in contemplation oflaw, the Defendant, who is unreasonably sued, is sufficiently indemnified by ajudgment in his favour which gives him his costs against the Plaintiff. Insupport of this proposition, reference has been made to the exposition of thelaw by Bowen, L.J., in Quarts Hill v. Eyre 11 Q.B.D. 674 at p. 690 (1883),where that learned Judge stated that, in the present day and according to ourpresent law, the bringing of an ordinary action, however malicious and howevergreat the want of reasonable and probable cause, will not support a subsequentaction for malicious prosecution. It is not necessary for us to examine whetherthis statement embodies an inflexible rule of law, or whether there are notwell recognised exceptions to it. There is high authority for the propositionthat it is an actionable wrong maliciously and without reasonable and probablecause to issue execution against the property of a judgment-debtor, forexample, to seize his goods under a writ of fieri facias after the judgmentdebt has been paid; this is not a trespass, it has been said, for the judgmentstill stands and will support the writ of execution, but it is an actionableabuse of judicial process [Churchill v. Siggers 3 E. and B. 929, 937 (1854)].But whether this is trespass, as indicated in Clissold v. Cratchley [1910] 2K.B. 244, or malicious abuse of judicial process it is actionable. A similarview was adopted in Raj Chandra Roy v. Shama Soondari I.L.R. 4 Cal. 588 (1879),and is supported by the decision of their Lordships of the Judicial Committeein Mudhun Mohun Doss v. Gokul Doss 10 M.I.A. 563 (1866). Sir James Colvilleobserved in the case last mentioned that, if it was important in India to checkany tendency to resist the execution of legal process, it was hardly lessimportant to maintain the principle that they who misused legal process wereresponsible for the consequences of that misuse. The broad propositionformulated by the learned Vakil for the Appellant, that the suit as framed isnot maintainable, cannot consequently be supported, and the statement that theinstitution of an ordinary civil action however unfounded, vexatious andmalicious it may be, is not a good cause of action must be qualified when therehas been arrest of person or seizure of property. We may add that sec. 491 ofthe Civil Procedure Code of 1882 expressly recognises such right of action, forit authorises a Court which has issued an order for arrest or attachment in thecourse of a suit, to award compensation not exceeding Rs. 1,000, if it shouldappear that such arrest or attachment was applied for on insufficient grounds;it then provides that the Court shall not award a larger amount than it woulddo in a suit for compensation and that an order under the section shall bar asuit for compensation in respect of such arrest or attachment. Sec. 497embodies similar provisions with regard to compensation for the issue of aninjunction on insufficient grounds. In fact, it is not difficult to tracedecisions in the reports in which this principle has been directly orindirectly recognised. [Doyal v. Dwarka Nath 8 W.R. 88 (1867), Huro Soondureev. Bungshee Mohun 3 W. Mis. 28 (1865), Mahomed Rezaooddin v. Hossain Buksh 6W.R. Mis. 24 (1866), Gobardhan v. Banee Chandra 21 W.R. 375 (1874), Wilson v.Kanhya Sahoo 11 W.R. 143 (1869), Nund Kumar v. Gour Sankar 13 W.R. 305 (1870)and Dharma Narain v. Sreemutty Dossee 18 W.R. 440 (1872)]. The learned Vakilfor the Respondent also relied upon Art. 29 of the Second Schedule of theIndian Limitation Act, 1877, to show that the Legislature contemplated suitsfor compensation for wrongful seizure of immoveable property under legalprocess. It is not necessary, however, to place any reliance upon theprovisions of the Limitation Act, because, as has been pointed out by theirLordships of the Judicial Committee, nothing in the Limitation Act can giverise to a cause of action unless a right to sue exists independently of thoseprovisions. [Harinath v. Mothoor Mohan L.R. 20 I.A. 188 (1893) and Khunni Lalv. Govind Krishna 13 C.L.J. 575 at p. 583 (1911)]. The question next ariseswhat is the precise nature of the right of action of the Plaintiff in the casebefore us. In our opinion, the Plaintiff, if entitled to damages, can succeed,not on the ground of malicious abuse of legal process, but on the ground thatthe Defendant has committed an act of trespass. As we have already pointed out,the order of this Court of the 2nd March 1906 was to the effect that, unlessthe Plaintiff paid to the Defendant the costs of that litigation within sixweeks of the arrival of the record in the Subordinate Court, the appeal wouldstand dismissed with costs. It has not been suggested and we do not think itcould reasonably be suggested that this order implied that the money should behanded over personally to the Defendant: payment into Court to the credit of theDefendant would, in our opinion, be sufficient compliance with the direction ofthis Court. Such payment was, as has now been ascertained, actually made withinthe prescribed time. Consequently the conditional order never ripended into adecree in favour of the Defendant; in other words, the essence of the matter isthat the Defendant had not, in the eye of law, any decree for costs against thePlaintiff which he was competent to execute. We are not now concerned with thequestion whether there was not reasonable excuse for the conduct of theDefendant. The fact remains that the Defendant obtained an attachment of theproperty of the Plaintiff under the erroneous impression that he had a decreecapable of execution; the Defendant is, therefore, liable to be sued by thePlaintiffs for damages in trespass. This view is amply supported by thedecision of the Court of Appeal in Clissold v. Cratchley [1910] 2 K.B. 244. Inthat case, execution was taken out by a solicitor for costs payable under anorder of Court; the debt had, in fact, been paid at his office to a clerk, whohad authority to receive it, on the very date that the writ was issued butabout three hours before. As soon as execution was levied, the judgment-debtorapprised the solickor that the debt had been paid, and execution was forthwithwithdrawn. In an action against the solicitor and his client to recover damagesfor improper levy of execution, it was held by the Court of Appeal that,although neither the solicitor nor his client had sued out the writ miliciouslythey were liable in trespass. Fletcher Moulton, L.J., observed that a writ ofexecution upon a satisfied judgment was null and void. Farwell, L. J., addedthat no writ of execution can lawfully issue on a judgment that has been paid orsatisfied before issue of the writ, because there is no judgment left on whichto base the writ, so that the writ is void ab initio and trespass will lieagainst the satisfied creditor and his solicitor who have put the sheriff inmotion. Vaughan Williams, L.J., relied upon a passage from Bullen and Leake(Precedents of Pleading, 3rd Ed., p. 353), where it is stated that, if theparty arrested can show that the judgment was satisfied by payment or otherwisebefore the arrest, he may then maintain an action; the arrest in such a casewould in general support an action of trespass. It is fairly clear that theliability is for trespass, not malicious abuse of process; there is no abuse ofprocess lawfully issued but the institution of proceedings without legalauthority in its inception. (Kinkead, Commentaries on Torts, Vol. I, sec. 233;Street, Foundations of Legal Liability, Vol. I, p. 334). The substance of thematter is that, if a litigant executes any form of legal process which isinvalid for want of jurisdiction, irregularity, or any other reason, and in sodoing he commits any act in the nature of trespass to person or property, he isliable therefor in an action of trespass; it is not necessary to prove anymalice or want of reasonable or probable cause. This is an obvious corollary ofthe elementary principle that mistake, however honest or inevitable, is nodefence for him who intentionally interferes with the person or property ofanother; the fundamental proposition cannot be disputed that in a case of thisdescription a supposed justification is no justification at all. A litigant whoeffects an arrest or seizes property must justify the trespass by pleading avalid execution of legal process, and any irregularity or error which has theeffect of making the process totally invalid will deprive him of alljustification [Painter v. Liverpool Oil Gas Light Company 3 A. & E. 433; 42R.R. 423 (1836) and Brooks v. Hodgkinson 4 H. & N. 712(1859)]. The learnedvakil for the Appellant has, however, laid considerable stress upon thecircumstance that in the subsequent suit for rent when objection was taken thatthe action could not be maintained as the Plaintiff had failed to carry out theorder of this Court, the Plaintiff failed to prove that the payment had beenmade as alleged by him. The learned Vakil has contended that, as execution wastaken out after this decision, the Defendant is protected. We are unable toaccept this contention as well-founded. It may be conceded that no action willlie against any person for issuing execution or otherwise acting in pursuanceof a valid judgment or order of a Court of Justice, even though it is erroneousand even though it is afterwards reversed, or set aside for error. Theprinciple that a valid judgment, however erroneous in law or fact, is asufficient justification for any act done in pursuance of it was recognised inthe cases of Williams v. Smith 14 C.B.N.S. 596 (1863) and Smith v. Sydney L.R.5 Q.B. 203 (1870), but it has no application to the circumstances of the casebefore us. Here the writ of attachment was not issued on the faith of thedecision in the second rent suit which was subsequently set aside by this Courtas the ultimate Court of Appeal. The Defendant took out the writ of attachmenton the assumption that the order as to payment of costs had not been carriedout and mere was thus a decree in his favour capable of execution against thePlaintiff. The execution also was based on this theory which had beenpreviously set up successfully to defeat the second rent suit. We are,therefore, of opinion that the Defendant cannot rightly contend that as herelied upon the judgment of a competent Court and as he acted upon the faith ofit, however erroneous the judgment might be, he ought to be protected. We mustconsequently hold that upon the admitted facts, the suit is maintainable, andthat the Defendant is liable for damages for trespass. The first contention ofthe Appellant must, therefore, be negatived. In so far as the second contentionof the Appellant is concerned, namely, that upon the facts found by theDistrict Judge, there was reasonable and probable cause for the attachmenteffected at his instance, it is not necessary for us to examine it in detail,in the view we take of the scope of the suit and the nature of the liability ofthe Defendant. As we have already explained the claim cannot be treated as onefor damages for malicious abuse of judicial process : it is essentially a suitfor damages for trespass. Consequently, the presence or absence of reasonableand probable cause is immaterial. We may add, however, that, upon the facts asalready set out, we are not prepared to agree in the conclusion of the learnedDistrict Judge : nor are we prepared to accept the contention of the Respondentthat the question is one of fact with which this Court is not competent to dealin second appeal. Whether there was reasonable and probable cause is a mixedquestion of fact and law : we are bound to accept the facts as found by theCourt of Appeal below, but we are entitled to examine whether the inferencedrawn therefrom is legitimate [Panton v. Williams 2 Q.B. 169 ; 57 R.R. 631(1841), Lister v. Perryman L.R. 4 H.L. 521 (1870), Hailes v. Marks 7 H. &N. 56 (1861), Shanta Bibee v. Chairman of Baranagore Municipality 12 C.L.J. 410(1910) and Ram Gopal v. Shamskhaton I.L.R. 20 al. 93 : S.C. L.R. 19 I.A. 228(1892).] We need not consider this point in further detail, however, for thereasons stated.

2. In so far as the third ground urged by the Appellant isconcerned it has been argued that the damages have been assessed upon entirelyerroneous principles. The learned District Judge has assessed damages underthree heads, namely, first, the value of the indigo crop which deteriorated andultimately became valueless : secondly, the litigation expenses incurred by thePlaintiff in the execution case, and, thirdly, exemplary damages, as theconduct of the Defendant was inexcusable. In so far as the first of theseelements is concerned, we are of opinion that the District Judge was clearly inerror. We shall assume that, on the authority of the decision in Ram KumarGhose v. Gobind Nath Sandyal 12 W.R. 391 (1869), the presumption is that whenthe land was attached, the standing crop also was attached. It may further be assumedthat, as laid down in the cases of Chedalal v. Mulchand I.L.R. 14 All. 30(1891), Madayya v. Yenkata I.L.R. 11 Mad. 193 (1887), Gangaprosad v. NarainI.L.R. 15 All. 394 (1893) and Sadu v. Sambhu I.L.R. 6 Bom. 592 (1882), standingcrop is immoveable property, though this view may be difficult to reconcilewith Surat Lal v. Umar Hazi I.L.R. 22 Cal. 877 (1895), Mangun Jha v. DulinGolab I.L.R. 25 Cal. 693 (1893) and Abdullah v. Asrafali 7 C.L.J. 152 (1907).Yet the question remains whether the attachment was the proximate cause of theloss of the crop. As soon as the attachment was effected, the Plaintiff mightand ought to have intimated to the Court that if the decree-holder intended toattach, not merely the land, but also the crop, steps had to be taken for theprotection of the perishable property. If such a representation had been made,the Court might either have permitted the Plaintiff to cut the crop on suchterms as to security as might be reasonable or might have appointed a Receiver.The conduct of the Plaintiff, on the other hand, is inexplicable. He neverasked for the direction of the Court and did not make any the slightest effortfor the protection of the property. Under these circumstances, we are unable tohold that the loss which may have resulted to the Plaintiff was the inevitableconsequence of the attachment effected by the Defendant. In so far as thesecond element is concerned, the case is equally clear. When the Defendantapplied for execution and the Plaintiff objected that the money had beendeposited in due time, he had to employ a pleader to search the records toascertain when the deposit had been made by his officer. It is inconceivableupon what principle the Plaintiff can claim to recover from the Defendant costsso incurred. In so far as the third element is concerned, we need only say thatthis is mainfestly not a case in which exemplary damages can be legitimatelyclaimed. Apart from the question of legal liability, we are unable to hold thatthe Defendant is in any way to blame for the events that have happened. ThePlaintiff sued the Defendant for rent. After the litigation had been carried onto this Court, he found it necessary in his own interest to withdraw from thesuit. He obtained what must be deemed an indulgence upon certain terms as topayment of costs. He might have paid the costs to the Defendant personally; infact upon a strict and literal interpretation of the language of the order,this ought to have been done. Instead of adopting this the obvious course, hedeposits the money in Court : but he does not furnish a copy of the challan tothe Defendant to enable him to withdraw the money. He seems to have consideredthat his duty ended as soon as the deposit was made and that it was immaterialwhether the Defendant could draw out the money except after considerable searchand trouble. By an unfortunate error on the part of the Court officer, aninaccurate entry is made in the deposit register. When in the subsequent rentsuit the Defendant asserts that the costs have not been deposited, thePlaintiff is unable to prove that he has made the deposit, and it is not till aspecial enquiry has been directed by this Court, that the Plaintiff is able toestablish the fact, after as he admits, an expensive search by his pleader.Under these circumstances, it is difficult to appreciate how any blame can bethrown upon the Defendant for the course which he adopted, namely, to apply forexecution to realise the costs due to him. No doubt, the Defendant, as we havealready explained, is guilty of trespass. But the case is manifestly not onefor exemplary damages. The assessment made by the District Judge cannot,therefore, be supported. The Plaintiff is entitled only to nominal damageswhich as Lord Halsbury puts it in Mediana v. Comet [1900] A.C. 113 at p. 116 isnot necessarily small damages: nominal damages are allowed in recognition ofthe fact that there is an infraction of a legal right which though it gives thePlaintiff no right to any real damages at all, yet gives him a right to theverdict or judgment because his legal right has been infringed : in otherwords, as Holt, C.J., observes in Ashby v. White Lord Raymond 938 at p. 955, anaction lies for trespass, though it does no damage, for it is an invasion ofthe property of the Plaintiff and the other has no right to, come there. We,therefore, assess the damages at Rs. 75. But as the claim was grosslyexaggerated and based on entirely erroneous grounds, the Appellant must havethe costs of this appeal, which we find on assessment amount to an aggregatesum of Rs. 75. Consequently although the Plaintiff obtains a decree fordamages, he will realise nothing from the Defendant. The parties will pay theirown costs in both the Courts below. The result, therefore, is that this appealis allowed, and the decree of the District Judge discharged. The Plaintiff isdeclared entitled to damages which are set off against the costs payable to theDefendant. There will, therefore, be no decree in his favour capable ofexecution.

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Bishun Singh vs.A.W.N. Wyatt (28.07.1911 - CALHC)