Judgment.- This is an appeal against the judgment and decree of the learned District Judge of Kanyakumari in Original Suit No. 174 of 1950. The plaintiff and the first defendant were the owners of a rice mill known as the Janaki Mills, situated in Nagercoil town. The first defendant filed a suit against the plaintiff in Original Suit No. 994 of 1113 (M.E.) in the Nagercoil Munsif’s Court, for dissolution of partnership and accounts and that suit was compromised on 9-5-1124 (M.E.). The second defendant an advocate, practising in Nagercoil, was appointed receiver during the pendency of the suit; and he was in possession of the above mentioned rice mill for a period of about six years until the plaintiff obtained possession through Court on 6-3-1125 (M.E.). The plaintiff alleged that during the period when the aforesaid receiver was in possession of the mill, various materials were found missing. The plaintiff also alleged that defendants 1 and 2 colluded together and removed the above materials with a view to obtain wrongful gain and cause wrongful loss to the plaintiff. The value of the parts thus found missing, was assessed at Rs. 4,592; and the plaintiff filed the suit against the first defendant and against the second defendant (advocate receiver) for a decree for the above sum of money as damages together with subsequent interest. The first defendant alleged that as the plaintiff was unlawfully selling parts of the mill, he had applied for the appointment of a receiver for the mill. It was untrue that he colluded with the second defendant and removed any of the articles. The plaintiff without any cause of action against this defendant attached his moveables before judgment. Therefore, the plaintiff should pay damages to the first defendant. The second defendant admitted his taking possession of the mill as receiver, in the prior suit in the Nagercoil District Munsif’s Court. Until he obtained possession, the plaintiff was in possession. He did his best as receiver to see to the safe custody of the articles entrusted to him. On his motion, a watcher was appointed to look after the premises. Due to the apathy of the plaintiff, and the first defendant, there were thefts in the mill, and the second defendant made timely approach to the Court, and necessary action was taken therefor. On his motion, a watcher was appointed to look after the premises. Due to the apathy of the plaintiff, and the first defendant, there were thefts in the mill, and the second defendant made timely approach to the Court, and necessary action was taken therefor. It was alleged that, in any event, the value given to the missing articles was excessive. The learned District Judge who tried the suit found that the plaintiff had no cause of action against the first defendant and no proper grounds for suing him. As regards the second defendant, the finding of the learned District Judge was that though there was loss of the articles from the mills due to theft, it had not been proved that such loss was caused by the wilful default or gross negligence of the receiver, second defendant. Therefore, the plaintiff could get no relief either against the first defendant or against the second defendant. The suit was dismissed. The learned District Judge also found that since the plaintiff had filed the suit against the first defendant, without any proper reason, and had also obtained an order of attachment of the first defendant’s properties before judgment without proper reason, the plaintiff was liable to pay Rs. 100 as damages to the first defendant. In the result, the suit, as already stated, was dismissed with costs of the contesting defendants, and the plaintiff was also ordered to pay Rs. 100 by way of damages to the first defendant for attachment before judgment on insufficient grounds. From the above decision the appeal is filed by the plaintiff. The plaintiff urged two contentions. The first was that the finding of the lower Court that there was no default or wilful negligence on the part of the receiver, second defendant, is incorrect and therefore, the plaintiff should be given relief by way of damages against the second defendant. It was next urged that the direction of the Court below ordering the plaintiff to pay damages to the first defendant was improper and should be set aside. The points for determination in the appeal are: (1) What were the articles missing from the mills during the time when the second defendant had possession of the mill as receiver, and what is their value? (2) Is the second defendant responsible and liable to account for such loss? The points for determination in the appeal are: (1) What were the articles missing from the mills during the time when the second defendant had possession of the mill as receiver, and what is their value? (2) Is the second defendant responsible and liable to account for such loss? (3) Is the order of the Court below directing the plaintiff to pay damages to the first defendant, justified and, if so, what is the quantum of damages to be awarded ? (4) To what relief? Points 1 and 2. The following dates are relevant. The second defendant was appointed receiver on 19-3-1119 (M.E.) which corresponds 5th November, 1943. The exact order appointing him as receiver has not been filed. He took possession as per his report, Exhibit C. on 16-4-1119 (M.E.) which would be about a month later, that is, approximately in December, 1943. No list of the articles found at the time he took possession was filed into Court. This is a very important circumstances for the purpose of making the receiver liable for loss of the missing articles. A Commissioner, one Padmanabha Ayyar, inspected the premises on 10th May, 1943 and prepared an inventory (Exhibit D) of the articles found at the premises. But, as pointed out by the learned District Judge, the plaintiff continued to be in possession of the mill till the time the receiver took possession. Unless, therefore, we have an inventory of the articles in the mill at the time, i.e., at the time the second defendant took charge, it would not be proper to proceed on the basis that the articles noted in Exhibit D were exactly the articles of which the second defendant took possession, and which he is liable to account. The learned District Judge also has pointed out in paragraph 6 of the judgment, that the plaintiff himself had sold some of the parts of the mill, but his statement was that he had sold them before the report, Exhibit D was prepared, but anyhow the objection regarding the absence of an inventory at the time the receiver took charge still holds good. It is not now in dispute that the mill was not in working condition, at the time the receiver took charge and no case has been urged by either party now before me that the receiver was expected to work the mill and account for the income. It is not now in dispute that the mill was not in working condition, at the time the receiver took charge and no case has been urged by either party now before me that the receiver was expected to work the mill and account for the income. Some time later, the receiver seems to have applied to the Court for appointment of a watcher, and on 10-11-1119 (M.E.), the Court called upon the plaintiff to state whether he was willing to pay for the expenses for appointing a watcher, or whether he was prepared to take possession of the mill on furnishing proper security. The plaintiff was prepared to take possession of the mill and deposited a sum of Rs. 200 and the Court ordered the receiver to hand over the mill to the plaintiff. The first defendant seems to have appealed to the High Court, and got this order set aside. On 4-7-1120 (M.E.) the second defendant applied to the Court again for the appointment of a watcher. Apparently, there was a report about the theft of articles made by the receiver, because reference is found to an order of the Court at this time, that the receiver should complain to the police about the theft. On 4-8-1120 (M.E.), the plaintiff deposited the money for the expenses of a watcher. Again, on 24-10-1120 (M.E.) the receiver filed a petition in Court, stating that the watcher appointed, has reported to him that thieves had entered the rice mill on the previous night after removing the window bars and had stolen some articles and that the receiver had inspected the mill and found the complaint to be true. The Court ordered the report of the receiver to be forwarded to the Inspector of Police for necessary action and investigation. Presumably, in view of these thefts, the first defendant applied at this time to the Court for sale of the mill, but the plaintiff opposed it. On 21-1-1121 (M.E.) the watcher again reported that thefts continued to take place in the mill, that he was not willing to continue as watcher and that another watcher might be appointed. Apparently nothing was done by the Court on this application. The watcher seems to have continued to be at his post. On 8-4-1121 (M.E.) the watcher again reported about further thefts and the Court wrote to the police thereon. Apparently nothing was done by the Court on this application. The watcher seems to have continued to be at his post. On 8-4-1121 (M.E.) the watcher again reported about further thefts and the Court wrote to the police thereon. The next information we have is the report of the receiver on 1-2-1122 (M.E.), (Exhibit V), stating that the building had become dilapidated, that the roof might fall down any moment, that the watcher was not doing his duty properly, that he could not be found in spite of search, that a new watcher might be appointed, and that the second defendant might be relieved from his office as receiver. It was at this stage that the plaintiff moved for the appointment of a Commissioner to note the missing articles, and the Commissioner, a member of the Bar, by name Noor Muhammad, sent a report (Exhibit E 30-4-1122 (M.E.)) giving a list of the missing articles, with reference to the articles noted in the report (Exhibit D) of the previous Commissioner, Mr. Padmanabha Ayyar. A fresh attempt seems to have been made at this time to sell the mill on the motion of the first defendant, but the plaintiff objected. The plaintiff seems to have taken possession of the mill through Court on 6-3-1125 (M.E.). The above summary of the events would show, first of all, that the second defendant had only the duty of keeping the mill in his possession and taking proper care of it. The second defendant appears to have thought that since he did not have to arrange for the working of the mill, but only to keep watch over it, the appointment of a watcher would have sufficed for the purpose. Accordingly, he moved the Court for the appointment of a watcher and a watcher was appointed. Thieves seem to have entered the mill and after some time part of the roof also fell down. "The condition of the mill at this time was so bad that free egress and ingress could foe obtained by strangers. But nobody seems to have cared to take steps to put an end to these happenings, by repair of the roof so as to make it difficult for the thieves to enter the mill again. But all this would require expenditure. The receiver could not bear this expenditure from his pocket. The parties would have to bear it. But nobody seems to have cared to take steps to put an end to these happenings, by repair of the roof so as to make it difficult for the thieves to enter the mill again. But all this would require expenditure. The receiver could not bear this expenditure from his pocket. The parties would have to bear it. The fact that thefts had taken place was reported to the Court by the receiver. The Court should have given notice of this report to the parties. The parties should, thereafter, have moved for necessary directions for repair of the building so that future thefts could be prevented. It would have been probably more proper for the receiver to have moved the Court specifically for this purpose. He seems to have remained content with merely filing a report of the watcher regarding the condition of the mill and about its being left unprotected against thefts and so on. A perusal of the relevant report shows that there was a general apathy on the part of the parties to be vigilant in the matter of doing the necessary repairs to the mill premises even after thefts were reported by the receiver. Both the plaintiff and the first defendant are residents of the locality and the narrative of the happenings, shows that periodically one party was moving the Court for selling the mill and the other party was resisting it. This would indicate that both the parties were aware of the deteriorating condition of the mill, and the necessity to put an end to the deterioration by a sale of it. It is urged by the contesting respondents, that if the plaintiff had not objected to the sale of the mill, much of the loss noticed would have been avoided, or, as observed above, the plaintiff if he was not willing to have a sale, could have taken steps to repair the building or have the machinery removed to a safer building, but the plaintiff did not care to do so. In the above circumstances, it appears to me that the lower Court was right in its conclusion that the receiver could not be held guilty of wilful negligence in the matter of loss of materials, though, as observed above, it would have been more proper if he had asked for specific directions from the Court regarding repairs to the premises and the person who should bear the cost of the repairs, or removal of the machinery to a more safe and less exposed place. It is possible that the receiver thought that his duties ended with the appointment of a watcher and reporting thefts as and when they took place, leaving it to the parties to find funds and make arrangements for the repair of the premises. But, then, as observed above, the fact that the premises were in disrepair, and thefts were taking place as a consequence, was a circumstance which the parties could have been fully aware of, and it is their apathy that encouraged the recurrence of more and more thefts. On the question whether the first defendant had colluded with the second defendant and brought about loss of the articles which was the allegation on which the plaint proceeded, the evidence is very vague and inconclusive. The plaintiff said that he heard about this from one Joseph, and Joseph in turn had information from others. Neither Joseph has been examined nor the informants of Joseph been examined. As already observed, there is no evidence as to the exact condition of the mill and its accessories, when the receiver took charge and the inventory prepared by an advocate much prior to that date, cannot be used as the basis of comparison, for the purpose of noting the items of the missing articles, or their value. I, therefore, confirm the finding of the Court below, that the plaintiff has not established his case of gross wilful default, or gross negligence, on the part of the receiver, on the basis of which his suit claim against the second defendant can succeed. He has also not established adequate grounds for obtaining relief against the first defendant. As regards the quantum of the value of the missing articles, estimated by the District Judge, though the appellant had raised an objection about it in the grounds of appeal, it was not referred to in the course of the arguments before me. He has also not established adequate grounds for obtaining relief against the first defendant. As regards the quantum of the value of the missing articles, estimated by the District Judge, though the appellant had raised an objection about it in the grounds of appeal, it was not referred to in the course of the arguments before me. I therefore find points (1) and (2) against the appellant. As regards point (3), the learned District Judge has made the following observations at the end of paragraph 15 of his judgment: “In my opinion plaintiff will have to pay damages to defendant 1 for the attachment before judgment, as the plaintiff had absolutely no proper reason to sue defendant 1 or to obtain an order of attachment before judgment. I would therefore award Rs. 100 as damages to defendant 1. (16) In the result the suit is hereby dismissed with costs. Plaintiff will pay defendant 1 Rs. 100 by way of damages for the attachment before judgment.” This direction was objected to by the learned counsel for the appellant. He observed, in the first place, that attachment before judgment is obtained under Order 38, rule 5 of the Code of Civil Procedure. The provision for giving compensation is found in section 95. Section 95 contains two clauses: (a) where there has been an attachment before judgment, and it appears to the Court that the attachment (before judgment) was applied for on insufficient grounds; or (b) when there has been an attachment before judgment and the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same. In either of these cases the defendant may apply to the Court and the Court may, on such application, award against the plaintiff, by its order an amount not exceeding Rs. 1,000 as compensation to the defendant. It is also clear from section 104 (1) (g) of the Code, that an order under section 95, is appealable and that the appeal is an appeal against an order. The gist of the above provisions would indicate that an order under section 95 has to be passed as an order collateral to the decree or decision in the suit; and it is appealable under section 104, Civil Procedure Code. Such appeals are treated as. appeals from orders and not appeals from decrees. The gist of the above provisions would indicate that an order under section 95 has to be passed as an order collateral to the decree or decision in the suit; and it is appealable under section 104, Civil Procedure Code. Such appeals are treated as. appeals from orders and not appeals from decrees. No special provisions are made for the procedure to be followed in dealing with an application under section 95. But an application is necessary for the purpose but such application may form even part of a counter, but the Court has however to become seized of the matter before it could proceed (vide Subraya v. Venkatarama1). But it is clear from the above provisions that the Court cannot provide for grant of compensation under section 95, as part of the suit, and embody its decision while passing the decree in the suit.. Since it is a collateral proceeding leading to an order independent of the decree in the suit, and from which an appeal as if from an order had been provided for in the Code it stands to reason, that after the Court has been seized of this application (whether by way of an independent application or by way of claim in a counter as pointed out in the above decision), a formal notice should be given to the aggrieved party, his objection heard, and then an order passed. But the learned District Judge has not adopted this course, but has treated the proceeding as part of the suit itself, and made the direction for payment of compensation, part of the decree in the suit. It appears to me that this procedure is open to objection, because it does not appear to comply with the relevant provisions of the Code, which contemplate an independent enquiry followed by an order independent of the decree in the suit. The matter does not appear to be merely one of form, but also of substance, because it was necessary to give an opportunity to the plaintiff to meet the claim for damages, in a proceeding, which though it arises out of the suit, appears to be also independent of the suit. I therefore allow the claim of the plaintiff so far as it relates to the award of damages and direct that the order directing payment of damages be set aside. I therefore allow the claim of the plaintiff so far as it relates to the award of damages and direct that the order directing payment of damages be set aside. In the result the appeal is allowed in part and the order of the Court below directing the award of damages to the first defendant is set aside. It is dismissed in other respects. The parties will pay and receive proportionate costs in this appeal. K.L.B. ----- Appeal allowed in part.