Authored By : Richard Garth, Henry Stewart Cunningham

Richard Garth, C.J.

1. It was contended by the appellants counsel, Mr.Woodroffe, that the learned Judge had altogether misunderstood the nature ofthis suit; that it was a suit of a peculiar nature brought under Section 2831of the Civil Procedure Code; and that it was in the nature of an appeal fromthe decision of the Subordinate Judge.

2. Mr. Woodroffe went so far as to insist that the judgmentof the Subordinate Judge, as well as the proceedings in the claim case, were asmuch the subject of appeal before Mr. Justice Wilson, when he tried this cause,as Mr. Justice WilsonS judgment, and the proceedings in this case are nowbefore us for the purposes of this appeal.

3. In support of this view, Mr. Woodroffe referred us to thecase of Mitchell v. Mathura Dass I.L.R. All. 6 decided by the Privy Council onthe 19th of June 1885.

4. The judgment in that case certainly does contain astatement to the effect that a suit under Section 283 is in substance a suitbrought to reverse the order in the execution proceedings. But we do notunderstand that their Lordships intended to lay down any such rule as wouldsupport Mr. Woodroffes contention.

5. The class of suits which are now brought under Section283 of the Code are no novelty. They were constantly brought under thecorresponding section of the Code of 1859; and they are neither described inthe Code, nor dealt with in practice, as appeals from the orders of the lowerCourt. They are brought no doubt for the purpose of establishing rights whichhave been negatived in the execution proceedings; but they are substantivesuits to all intents and purposes; and must be tried like any other suits,subject to the ordinary rules of procedure and evidence.

6. In this case Mr. Woodroffe complains that the judgment inthe claim case was not duly considered by Mr. Justice WILSON; it was producedno doubt in Court before the learned Judge; but we do not find that any attemptwas made by the defendants to make that judgment evidence, nor do we see (ifthere had been such an attempt), how the judgment would have been properlyreceivable.

[The learned Chief Justice here went into the merits of thecase, stating that he was of opinion that the plaintiffs story wassubstantially true; and that he was entitled to recover from the Rai defendantsthe sums which had been awarded him by the Court below.]

7. As regards the amount awarded to the plaintiff, a pointwhich has been strongly urged upon us is this: that the defendants are notanswerable for any depreciation which the goods may have undergone from thetime when they were first attached to the time when they were sold by theAlipore Court on the 30th day of June 1884; and, consequently, that the utmostwhich the plaintiff could be entitled to was the sum for which the goods werethen sold.

8. Mr. Evans contended, first, that as the claim made in theSub-Judges Court was entirely the act of the plaintiff, the defendants werenot answerable for the consequences of any delay which took place in the courseof those proceedings.

9. Secondly, that, even assuming the defendants to have beenliable in the first instance, they were no longer liable for any depreciationof the property after they had proposed to sell the goods, and the Court at theinstance of the plaintiff had refused to order a sale.

10. In support of this contention, the case of Walker v.Olding 10 H. & C. 621 : 32 L.J. Exch. 142 was relied upon as showing that,when the Court had made an order for the sale of goods on an inter pleaderissue, the execution creditor, though he should turn out to be a wrong-doer,was not answerable for any loss which might have occurred to the true owner inconsequence of the sale.

11. It seems to me that there is no good ground for eitherof these contentions. It must be borne in mind, in the first place, that theattachment of the 25th of November was an attachment before judgment; and thatthe value of the goods attached was four or five times as large as the sum forwhich the Rais were bringing their suit. The judgment was not obtained in thatsuit until the 7th day of May 1884.

12. The attachment was clearly a wrongful act on the part ofthe Rais, which deprived the plaintiff of the possession of the goods, and ofhis power of disposing of them.

13. Moreover, there was no pretence, so far as I can see,for attaching goods of so large a value; and if in this respect the Rais made amistake in the first instance, they might have rectified it afterwards byrelieving some of the goods from attachment. But this they did not do.

14. It was suggested by Mr. Evans that there were otherattachments also, made by other creditors of the Deys, upon the same goods. Butthose attachments were subsequent to that of the Rais; and it is by no meansimprobable that they were made in consequence of the Rais attachment. At anyrate, the fact that other wrong-doers had also attached the goods can make nodifference whatever in the extent of the Rais liability.

15. Then as to the second point it was argued that theplaintiff might have allowed the goods to be sold, When the Rais applied to theCourt for that purpose.

16. But the plaintiff was surely justified in refusing toallow his goods to be sold by the Court at what would obviously have been aforced sale, especially considering how large their value was, as compared withthe amount of the Rais decree.

17. A wrong-doer, under such circumstances, has no right todictate to the man whom he has wronged, how the goods, which have beenwrongfully seized, should be disposed of. He has no right to say: "Now,unless you consent that these goods of yours, which I have wrongfully attached,shaft be sold by the Court, you must be answerable for any depreciation whichmay afterwards occur in the value of them."

18. If this were the position in which a man, whose goodshave been seized in execution, were to be placed by making a claim in theexecution proceedings, it would in the generality of cases be the height offolly to make any such claim. The safer course would be to bring a regular suitat once.

19. No authority was cited to us which gives colour to sucha proposition; and it seems to me that the argument is quite untenable. Therule in England, to which Mr. Evans referred, and which is illustrated by thecase of Walker v. Olding 10 H. & C. 621 : 32 L.J. Exch. 142 does not, in myopinion, assist him.

20. In that case certain goods of a third party had beentaken in execution by an execution-creditor. The third party took out an interpleadersummons, which was heard, in due course, before the Judge in Chambers, whoordered (as he had power to do) that the goods should be sold and the questionas to the ownership tried by an arbitrator.

21. The goods having been found to be the property of theclaimant, the latter insisted that the execution creditor ought to pay the losswhich he (the claimant) had sustained in consequence of the sale of the goods.But the Court held that he was not entitled to recover that loss up to the timeof the sale; the execution creditor would be liable for any depreciation of thegoods; but as the sale itself was the act of the Court, the claimant couldrecover no damage on that account.

22. Then, lastly, it was insisted by Mr. Evans that in thiscase the plaintiff did eventually consent to the sale. But there really seemsto be nothing in this point. The goods eventually were ordered to be sold bythe Alipore Court; and all that the plaintiff proposed and consented to, wasthat they should be sold by his own brokers, Messrs. Landale and Morgan,instead of by the Court, as they were likely in that way to command a betterprice.

23. Lastly, the appellants say that there is a difficulty inobtaining the price of the goods, Rs. 12,703-12, from the Alipore Court. Ifthere, is any such difficulty, it is one which has clearly not been caused bythe plaintiff. The plaintiff is, prima facie, entitled to be paid by thedefendants the sum which has been awarded to him by the Court below. On theother hand, the plaintiff is bound to assist the defendants to obtain the Rs.12,703-12 from the Alipore Court. If the difficulty in obtaining this moneyarises from causes over which the plaintiff has no control, the defendants mustbe sufferers.

24. The appeal is dismissed with costs.

Henry Stewart Cunningham, J.

25. I concur with the Chief Justice that the original Courtwas right in holding that the balance of the evidence is in favour of the truthof the plaintiffs story; also that the Court was right in trying the case onthe evidence before it, and in declining to take into consideration the orderin the claim case, or any part of those proceedings not properly proved in thesuit. As to the question of damages, Mr. Evans main contention was that thesuit provided for by Section 283 is in its nature distinct from a suit forcompensation for irregular seizure, and that in the former suit all that theplaintiff can do is to establish the right which he claims in the property;that the defendants responsibility ceased either on November 26th whenplaintiff made his claim, or on the 28th November when the order for the Nazirto go and make an inventory was passed; that the property being thus in thecustody of the Court and the subject of litigation, no subsequent deteriorationor loss would give rise to a claim for damages.

26. I do not see that any such restriction of the ordinaryrule of law as to damages for wrongful attachment can be supposed to have beenintended in the provisions as to claims to attached property in Sections 278 to2832 of the Code; or that in the suit to which reference is made in Section 283the plaintiff is not at liberty, besides establishing his right, to claim damages for any loss occasioned to him by the defendants wrongful act in invadingit. The previous sections provide a summary procedure in the case of suchclaims, and Section 283 gives a finality to the order passed, unless it iscontested in a suit, which the Limitation Act requires to be brought within aspecified period. But there is nothing, in my opinion, in such provisions tolimit plaintiffs right to compensation for his loss, or the defendantsresponsibility for his wrongful act; and if the existence of the summaryprocedure leads to delay, and that delay to further loss, that seems to me anatural result, the consequences of which must fall on the defendant.

27. Another point urged was that the delay had arisen, to alarge extent, from the plaintiff himself, the defendants throughout having beenanxious to sell, and the plaintiff desirous to impede or postpone the sale. Butthe answer to this is that the plaintiff had a right to take whatever steps thelaw enabled him to take with a view to preventing the occurrence of a wrong tohimself; and if, in so doing, he occasioned delay, that delay is a consequencearising out of the defendants act, and for which the defendants may fairly beheld responsible. I think, therefore, that the original Court has rightlyassessed the damages in giving the plaintiff the value of his goods on the dateof the attachment, and I concur in dismissing the appeal.

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Hursook Dass vs.Kishori Mohun Rai and Ors. (13.03.1886 -CALHC)