Rupendra Coomar Mitter, J.

1. This Rule has been obtained by the plaintiff against whomdamages have been awarded under the provisions of Section 95 of the Code ofCivil Procedure. It appears that the plaintiff instituted a suit to recover asum of money from the defendant on the basis of a promissory note. After filingthe suit he made an application for attachment before judgment of someimmovable properties belonging to the opposite party. On January 7, 1933, theconditional order for attachment before judgment was made and that order wasmade final on January 10,1933. Seven days later, the opposite party came toCourt, deposited the amount of the claim and the attachment was withdrawn.Later on, he did not contest the suit which was decreed without contest.Thereafter, the opposite party made an application for compensation under theprovisions of Section 95 of the Code. The allegations made in the saidapplication are recited in para. 5 of the application for revision filed inthis Court but they need not be set out in detail for the purposes of the Rule.

2. The Court of first instance held that the claim of theopposite party was not admissible under the provisions of Section 95 and,therefore, he dismissed the application. An appeal was taken, and the lowerAppellate Court has held that the opposite party is entitled to getcompensation which has been assessed at Rs. 100. In delivering the judgment,the learned Subordinate Judge negatives most of the allegations on which theapplication under Section 95 was based. He held that the opposite party wasentitled to claim compensation inasmuch as he felt humiliated and his prestigesuffered by reason of the attachment before judgment effected at the instanceof the petitioner.

3. The question before me is whether on the above findingsthe claim preferred is admissible under Section 95 I have not to consider herewhether damages could be claimed for malicious arrest or malicious attachmentin a suit properly framed. But I am dealing here with an application underSection 95 where the matter is to be summarily investigated. The whole questioncentres round this controversy, namely as to the precise meaning of the words

Award against the plaintiff...a reasonable compensation tothe defendant for the expense or injury caused to him.

4. In order that a claim under Section 95 be admissible, itis necessary that the Court should find that the attachment or arrest orinjunction was applied for on insufficient grounds, and secondly, it can onlyaward compensation for the expense or injury caused to the defendant. It wouldfollow from a plain construction of the section that any claim whatsoever thatthe defendant may choose to put forward in such an application is not admissible.The claim must be in. respect of some damage caused to him as the proximateresult of the attachment, arrest or injunction which had been applied for oninsufficient grounds. This is the view which has been taken by a Division Benchof this Court in the case of Jaharmull-Chimanlal & Co. v. Iswardass: AIR1932Cal695 a decision which I am bound to follow. Nodoubt, the Madras High Court has given a very elastic interpretation to theword "injury" as used in the section, but there being a decision ofthis Court expressly dealing with this point, I have to follow that decision.

5. Sir Syed Saadullah on behalf of the opposite party hasraised a question that an application in revision is not maintainable. He saysthat the decision given by the lower Appellate Court involves at most anerroneous decision on a point of law. I am unable to give effect to thiscontention. It has been held in this Court that if a Court by amisinterpretation of the provisions of a statute assume a jurisdiction in respectof a matter over which it would not have had jurisdiction if the statute hadbeen rightly interpreted, the order made is one which is liable to be revisedif not under Clause (a) to Section 115 at least under Clause (c) of the saidsection. The case of Hindley v. Joynarain Marwari 46 C 962 : 54 Ind. Cas. 439 [LQ/CalHC/1919/185] :24 CWN 288 is an illustration of the proposition I. am stating. I hold,therefore, that the lower Appellate Court was not justified in awarding anycompensation to the opposite party on the basis that his prestige had sufferedor that he felt humiliated.

6. There is one further point to be noticed. In the orderingportion of the judgment, the learned Subordinate Judge remarks that he givesRs. 100 as damages to the opposite party for injury and expenses. If there hadbeen any evidence on the record to show the amount of expenses to which theopposite party had been put to by reason of the attachment before judgment, Iwould have made an order in his favour limiting it to the amount of the expenseshe had incurred in this respect but inasmuch as there is no evidence on thispoint, I am bound to discharge the order of the learned Subordinate Judge.

7. The result is that this Rule is made absolute, the orderof the learned Subordinate Judge is set aside and that of the learned Munsifrestored. In the circumstances of the case, I do not make any order for costs.

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Chandulal Seraogi vs.Purna Chandra Pal (18.01.1935 - CALHC)