Judgment :- 1. Plaintiff is the appellant. The suit is for damages. Plaintiff and the defendant are children of sisters. Sree Rama Tile Works Limited, Quilon, executed a hypothecation bond in favour of the plaintiff and the defendant on 31.1.1107 for Rs. 12,000/-. The plaintiff alone instituted a suit on the basis of the hypothecation bond as O.S. No. 13 of 1121 of the Quilon District Court. The present defendant did not agree to join as plaintiff in that suit and she was, therefore, impleaded as second defendant, the first defendant being the company. It was alleged in the plaint in that case that out of the sum of Rs.12,000/-advanced under the hypothecation bond only Rs. 1,150/- belonged to the present defendant and that the rest belonged to the plaintiff. The second defendant did not at first contest the suit and, under the decree that was passed in the case, the second defendant was held entitled to only Rs. 3,258-26 Chs. 8 Cash out of the plaint amount and the plaintiff was held entitled to the balance amount. Sree Rama Tile Works Limited went into liquidation and the vendees of the liquidators deposited in court the whole decree amount, amounting to Rs. 38,392-5-8. On 4.12.1124 the present defendant filed a petition to set aside the exparte decree. While that petition was pending, the liquidators filed a petition in the Liquidation Court as Company Petition No. 11 of 1124 calling in question the hypothecation bond and the decree in O.S. No. 13 of 1121 and seeking to set them aside. In the meanwhile the plaintiff applied for disbursement of her share of the decree amount deposited in court. The present defendant objected to the disbursement of the amount to the plaintiff till the disposal of her petition to set aside the exparte decree. The Court passed an order on 17.4.1125 allowing the plaintiff to draw one-half the decree amount and costs of the suit and staying disbursement of the remaining portion of the decree amount till the disposal of the petition of the defendant to set aside the exparte decree. The defendant appealed from that order before the High Court as A.S. No. 278 of 1125 and applied for stay of disbursement of one-half the decree amount to the plaintiff till the disposal of the appeal. The defendant appealed from that order before the High Court as A.S. No. 278 of 1125 and applied for stay of disbursement of one-half the decree amount to the plaintiff till the disposal of the appeal. On the stay petition, the High Court passed an interim order on 5.12.1949 to the following effect: "Notice. In the meanwhile the plaintiff will be allowed to draw the amount only on furnishing security. Notice returnable in 7 days." After the plaintiff entered appearance in the case both sides were heard and final order on the stay petition was passed on 7.12.1950. The order was as follows: "Heard both sides. Plaintiff-decree-holder is allowed to draw from court only one-half of the decree amount and that only after giving proper security for that amount to the satisfaction of the lower court." In the meanwhile Company Petition No. 11 of 1124 was dismissed by the Liquidation Court on the ground that it had no jurisdiction to decide the question of the validity of the hypothecation bond and the decree in O.S. No. 13 of 1121. The liquidators appealed from that order as A.S. No. 148 of 1950. That appeal and A.S. No. 278 of 1125 were heard together and both the appeals were disposed on 1.6.1951. Thereafter, the plaintiff drew from court one-half the decree amount on 6.8.1951. The defendant's petition to set aside the exparte decree was dismissed by the trial court, but was allowed by the High Court in appeal, and the suit was restored to file. The present suit was instituted by the plaintiff for damages sustained by her by way of loss of interest on one-half the decree amount from 5.12.1949, the date of the interim order on the stay petition, to 6.8.1951, the date on which the plaintiff drew the amount from court. Interest was claimed at the rate of 6 per cent per annum. The total amount claimed by the plaintiff was Rs. 2,046-1-0. It was alleged in the plaint that the plaintiff was prevented from drawing the amount from court on account of the vaxatious conduct of the defendant. 2. Interest was claimed at the rate of 6 per cent per annum. The total amount claimed by the plaintiff was Rs. 2,046-1-0. It was alleged in the plaint that the plaintiff was prevented from drawing the amount from court on account of the vaxatious conduct of the defendant. 2. The defendant contended that the suit was not maintainable, that the plaintiff and the defendant were entitled to equal shares in the hypothecation amount, that the decree in O.S. 13 of 1121 was obtained by the plaintiff fraudulently, that there was no malafide on the part of the defendant in objecting to the disbursement of the decree amount to the plaintiff, that the liquidators had filed a petition to set aside the decree, that the defendant had reason to apprehend that if the plaintiff was allowed to draw one-half the decree amount without furnishing security the liquidators might recover the amount from the defendant in case their petition was allowed by the court since the plaintiff had no properties in her name, and that it was only for safeguarding her interests that she objected to the disbursement of one-half the amount to the plaintiff without taking security for the same. 3. The Court below held that the plaintiff was not entitled to the damages claimed in the plaint and dismissed the suit with costs. 4. The only question for decision in the appeal is whether the plaintiff is entitled to claim damages from the defendant for the loss of interest caused by the order of this court dated 5.12.1949 allowing the plaintiff to draw one-half the decree amount only on security. 5. The question as to the right of a party to a proceeding in a civil court to claim damages from the opposite party for loss occasioned to him by an order of the court, passed at the instance of that party, was discussed by B.K. Mukherjee, J. (as he then was), in Bhupendra Nath v. Trinayani Devi (1944 Cal. 289). The learned judge observed: "According to the Law of England, it is an actionable wrong to set in motion the machinery of a criminal court against a person maliciously and without reasonable and probable cause. 289). The learned judge observed: "According to the Law of England, it is an actionable wrong to set in motion the machinery of a criminal court against a person maliciously and without reasonable and probable cause. No action, however, lies for instituting civil proceedings falsely and maliciously, as the ordinary presumption is that a successful defendant, who is unsuccessfully sued, is amply compensated by the order for costs in his favour. Exceptions are however, made in certain specific cases where, as a consequence of the legal proceedings, some damage results, of which the law will take notice; e.g., when a man's liberty is taken away or his fair name and credit are injured: (vide Quartzhill Gold Mining Company v. Eyre, 1883 (11) Q.B. Division 674). Thus it is actionable wrong to present a bankruptcy petition against a person or start liquidation proceedings against a company maliciously and without reasonable or probable cause. So also it is an actionable injury to procure the arrest and imprisonment of the plaintiff or to cause an execution to be levied in respect of his property by means of any legal process which is inspired by malice and destitute of any reasonable and probable cause (vide Salmond on Tort. 9th Edition, page 655). A distinction has all along been made between malicious arrest or abuse of execution proceedings on the one hand and false imprisonment or unlawful seizure or attachment of the plaintiff's property on the other. In the first case, the defendant acts under order or authority of the court, and the foundation of the action is the malicious procuring of the order of the court by representation of facts which the defendant knew to be false or of which there was no reasonable and proper basis. In the other class of case, the act is an act of the defendant himself or of a ministerial officer of the court and even if there is an order of the court behind it, it is void for want of jurisdiction. In the other class of case, the act is an act of the defendant himself or of a ministerial officer of the court and even if there is an order of the court behind it, it is void for want of jurisdiction. In such a case, if there is a restraint imposed on the liberty of the plaintiff, or if there is wrongful entry upon his property, the defendant is liable on an action of trespass and neither malice nor want of reasonable and probable cause need be established." After referring to the decision of the Court of Appeal in Clissold v. Cratchley (1910-2 KB 244), the learned judge proceeded: "The position, therefore, is that if a litigant takes out any form of legal process which is void for want of jurisdiction, and in so doing, commits an act in the nature of trespass he will be liable in an action of trespass and no question of malice or want of reasonable and probable cause would arise; but if there was a valid or subsisting order of the court at the time when the processes are taken out, the action would be one on the case and it would be necessary to prove malice before the plaintiff could recover damages." The learned judge further observed: "The question is whether in a case like the one before us, when a party aggrieved by an injunction obtained against him by another, brings a suit for damages against the latter is it enough for him to show that the injunction was obtained on insufficient grounds as is demonstrated by the subsequent result of the suit; or is it necessary, as Mr. Ghose contends, that he should go further and prove that there was no reasonable and probable cause upon which the application for injunction could be founded and that the defendant was actuated by malice? In our opinion, the contention of Mr. Ghose is correct, and as the essence of such action is the malicious abuse of the process of the court it is not sufficient to show that the injunction was obtained on insufficient grounds; it must be proved also that the defendant knew them to be insufficient and acted from an improper motive. In our opinion, the contention of Mr. Ghose is correct, and as the essence of such action is the malicious abuse of the process of the court it is not sufficient to show that the injunction was obtained on insufficient grounds; it must be proved also that the defendant knew them to be insufficient and acted from an improper motive. The position would be different indeed if the order of the court was void for want of jurisdiction or the act could be regarded as the act of the defendant himself or of a ministerial officer of the court. In such circumstances if there was actual interference with the property of the plaintiff an action of trespass would undoubtedly lie. But as none of the circumstances mentioned above exists in the present case it was incumbent in our opinion upon the plaintiff to prove malice and want of reasonable or probable cause before she could be given damages against the defendants. This view which is based upon the principles of English Law referred to above is fully borne out by a large number of decisions of this as well as of other High Courts in India." 6. The distinction between acts done without judicial sanction and acts done under judicial sanction improperly obtained was explained by the Privy Council in Ramanathan Chetty v. Meera Saibo (1931 PC 28). Their Lordships said: "A distinction must always be drawn between acts done without judicial sanction and acts done under judicial sanction improperly obtained. If goods are seized under a writ of warrant which authorised the seizure, the seizure is lawful and no action will lie in respect of the seizure the person complaining can establish a remedy by some such action as for malicious prosecution. If however, the writ of warrant did not authorise the seizure of the goods seized an action would lie for damages occasioned by wrongful seizure without proof of malice." 7. In Sankaranarayana Ayer v. Subramonia Ayer (1955 KLT 783), a case in which the plaintiff sued for damages for wrongful injunction, this court held that the essence of the action was the malicious abuse of the process of the court and that the plaintiff could recover damages only on proof of malice on the part of the defendant. 8. The question is discussed by Kameswara Rao in his book on the Law of Damages and Compensation. 8. The question is discussed by Kameswara Rao in his book on the Law of Damages and Compensation. The learned author says: "Every party to a suit or other proceeding, if properly instituted, has got the right to apply for a maximum use of any process allowed by law against the other party to it for the purpose of prosecuting the action to a successful termination. The mere applying, therefore, for a mesne or interlocutory process, can in no circumstances give rise in the other party to a cause of action for damages. Where the Court passes an order on such application, and damage is caused as a result of the enforcement of such order, the party who has procured the order is equally not liable, because the damage in such a case is not a direct result of the act of the party but that of the Judge. Between the damage and the act of the party a judicial act intervened, rendering the damage too remote. The same result follows even if the judgment or order of the court be erroneous, on the principle that no party is liable for procuring an erroneous decision of a court of law, provided of course, that the court has jurisdiction to pass such an order A right of action is, however, given to the aggrieved party if the party who procured the order has made an abuse of the process so obtained by him, that is to say, has used it in an improper manner and for improper purposes". (Page 865, 3rd Edition). The learned author further says at page 870: "Merely applying for an order of injunction cannot be said to be a wrongful act, because every litigant has an inherent right to make use of any mesne process sanctioned by law. The application does not by itself cause injury or damage to the other party. It is only the order of the Court passed upon the application that is the ultimate cause of the damage, and upon the well established principle that no party is liable for damages for procuring an erroneous decision from a Court of law, the party who has moved for the injunction cannot be sued, unless the party injured can establish a remedy by some such action as for malicious prosecution or abuse of the process of Court. The true principle as already stated, is that where the interference is by way of a valid or regular order of the Court, the only action which will lie is one on the case, but when it is by means of a void order, the appropriate action is one of trespass". 9. It is not contended for the appellant that the order of this court allowing the plaintiff to draw one-half the decree amount only after furnishing security was one passed without jurisdiction and that it is void. The plaintiff can, therefore, succeed in this suit only if she establishes that the order was obtained by the defendant by an abuse of the process of the court or, in other words, that the defendant moved the court for an order of stay without any reasonable and probable cause and from an improper motive. The question is whether the plaintiff has succeeded in proving this. 10. It is true that the defendant claimed only one-half the amount covered by the hypothecation bond. There would, therefore, be no justification in her objecting to the plaintiff drawing the other half. It was because there was the petition filed by the liquidators questioning the validity of the hypothecation bond and the decree passed on the basis of it that the defendant objected to the disbursement of even one-half the amount to the plaintiff. The defendant had reason to apprehend that if the petition of the liquidators was allowed and the decree was set aside the liquidators might seek to recover the whole amount from herself since the plaintiff had no properties in her name. In the circumstances, it cannot be said that the objection of the defendant to the disbursement of one-half the decree amount to the plaintiff without taking security from her was altogether unreasonable or that it was the result of malice. The objection petition is not produced in the case; but that this was the main objection can be gathered from the judgment of the High Court disposing of A.S. No. 278 of 1125 (Ext. F). The objection petition is not produced in the case; but that this was the main objection can be gathered from the judgment of the High Court disposing of A.S. No. 278 of 1125 (Ext. F). This is what is stated in the judgment: "The second defendant objected on the ground that she is entitled to one-half of the amount in deposit, that the payment of the amount to the plaintiff before the disposal of her petition to set aside the exparte decree and Company Petition No. 11 of 1124 filed by the liquidators would seriously prejudice her rights". The fact that the liquidator's petition questioning the hypothecation bond and the decree was pending disposal must be the reason why this Court after hearing both sides on the stay petition insisted that the plaintiff should be allowed to draw even one-half the decree amount only after furnishing security for that amount. As stated already, the appeal filed by the liquidators from the order dismissing their petition (A.S. No. 148 of 1950) was also disposed of along with A.S. No. 278 of 1125. This court observed in the judgment in A.S. No. 278 of 1125 (Ext. F) that in view of the fact that the liquidators' appeal also was dismissed the appellant viz., the present defendant, would have no reason, to apprehend that she would be prejudiced by allowing the respondent (the present plaintiff) to draw one-half the decree amount without security. It was observed as follows in the judgment. "Company Petition No. 11 of 1124 filed by the liquidators has been dismissed by the lower Court and we have in our judgment in A.S. No. 148 of 1950 confirmed the order of dismissal. The entire money that the second defendant lays claim to is already in deposit in Court, and we do not think that in the circumstances now existing there is any reason for her to fear that her interests are not sufficiently safeguarded". It has also to be noted that in dismissing the appeal this court directed both sides to bear their respective costs. 11. It has also to be noted that in dismissing the appeal this court directed both sides to bear their respective costs. 11. In the circumstances, we are unable to accept the contention of the appellant that the order of the High Court allowing her to draw one-half the decree amount only on furnishing security was one obtained by the defendant by an abuse of the process of the court or that the defendant was actuated by malice in moving the court for such an order. The court only required the plaintiff to furnish security before drawing the amount. Although the plaintiff had no property in her name for furnishing security there were her husband's people who are very rich and who could give security if only the plaintiff wanted them to do so. Ext. I is a security bond executed by the plaintiff's husband's brother for the costs of this suit. According to Ext. I the plaintiff's share of the hypothecation amount, was joint family property. Ext. I also shows that the joint family was worth about two-and-a-half lakhs of rupees. In the circumstances, we do not think that there is any force in the contention of the plaintiff that the object of the defendant in preventing her from drawing one-half the decree amount without furnishing security was to coerce her to agree to the terms of the defendant as regards the apportionment of the decree amount. We agree with the finding of the court below that the defendant was not actuated by malice in objecting to the disbursement of the amount to the plaintiff without taking security from her and in applying in the High Court for stay of the order of the trial court till the disposal of the appeal from that order. 12. In the result, we confirm the judgment and decree of the court below and dismiss the appeal. In the circumstances of this case we direct both parties to bear this respective costs both here and in the court below.