Thag Ram v. Ram Naresh Ram — 1969 DIGILAW 113 (ALL)

JUDGMENT G.C. Mathur, J. - This appeal arises out of a suit filed by the respondents for compensation or damages for the attachment of movable property of the respondents in an earlier suit maliciously and on insufficient grounds. The sole question which arises is whether the suit is governed by Article 29 of the First Schedule of the Indian Limitation Act, 1908. 2. On August 9, 1949, Suit No. 346 of 1949 was filed by Thagram appellant against Ram Naresh and Bali Prasad respondents for possession of a wooden and three sewing machines. Thagram's claim was that the shop and the sewing machines belonged to him and that the respondents had come in illegal possession of the same. Thagram obtained an order for attachment before judgment of the sewing machines and had them seized on August 22, 1949. They were thereafter given in the custody of a supardar. It appears that, at some stage, the supardar reported that the machines had been stolen and, ultimately, Thagram had to pay the price of the machines to the respondents, which was done on October 26, 1951. Thagram's suit was dismissed on October 24, 1950, and his appeal was dismissed on August 9, 1951. Respondents Ram Naresh and Bali Prasad filed the present suit No. 8 of the 1952 on December 15, 1951. The suit was for recovery of Rs. 4,904/-, The trial court found that the machines had been got attached and seized by Thagram maliciously and on insufficient grounds. It further held that the damage suffered by the respondents was Rs. 1,300/-. It, however, dismissed the suit on the ground that the suit was covered by Article 29 and that, since it was not filed within one year of the date of the wrongful seizure, it was barred by time. The respondents preferred an appeal. In the appeal, the only point which arose for consideration was that of limitation. The finding of the trial court that the attachment order had been obtained maliciously and on insufficient grounds and that the damage suffered by the respondents was Rs. 1,300/- were accepted by both the parties. The appellate court held that the suit was not barred by time and accordingly it allowed the appeal and decreed the suit for recovery of Rs. 1,300/- with proportionate costs. Against the decree of the lower appellate court, Thagram has preferred this second appeal. 1,300/- were accepted by both the parties. The appellate court held that the suit was not barred by time and accordingly it allowed the appeal and decreed the suit for recovery of Rs. 1,300/- with proportionate costs. Against the decree of the lower appellate court, Thagram has preferred this second appeal. The appeal came up for hearing before Ramabhadran, J. He was of the view that there was some conflict between two Single Judge decisions of this Court on the point and has referred the case to us for decision. 3. Article 29 provides the period of limitation of one year for suits "for compensation for wrongful seizure of movable property under legal process" and the starting point of limitation is prescribed as "the date of the seizure". Having heard counsel for parties and having examined the cases cited before us, we have come to the conclusion that the present suit is not one for compensation for wrongful seizure within the meaning of Article 29 of the Limitation Act. In cases of attachment before judgment and attachment in execution of decrees, the seizure in pursuance of an order of a court can be said to be wrongful only : (a) if the order itself is without jurisdiction, or (b) if the order relates to goods not belonging to the defendant or the judgment-debtor, or (c) if goods other than those ordered to be attached are seized. 4. But the seizure cannot be said to the wrongful if the order of attachment is a legal and valid order and the seizure is of goods which it directs to be seized. 5. The same view was taken by a Division Bench of the Calcutta High Court in Arjan Biswas v. Abdul Biswas, A.I.R. 1921 Calcutta 774 where it was observed : "In order to bring the case under that article, it must be shown that the seizure was wrongful under legal process. In the present case the writ was issued by the Court and prima fade it was not a wrongful seizure. The writ was not without jurisdiction as the Court had jurisdiction over the subject-matter; nor was the writ executed against a person who was no party to the decree, nor with respect to goods outside the scope of the writ. In the present case the writ was issued by the Court and prima fade it was not a wrongful seizure. The writ was not without jurisdiction as the Court had jurisdiction over the subject-matter; nor was the writ executed against a person who was no party to the decree, nor with respect to goods outside the scope of the writ. In these circumstances, we think that Article 29 is inapplicable to the case." A somewhat similar view was taken in Krishna v. Sitaram, A.I.R. 1931 Nagpur 47 Niyogi, A. J. C. held : "It appears to me that the crux of Article 29 is in the words "wrongful seizure". Of course, if the seizure is not wrongful, there can be no cause of action. The seizure may be wrongful either because the property does not belong to the judgment-debtor or that the Court has no jurisdiction to attach the property. It is because the process is illegal that the seizure become wrongful so as to give a cause of action for the suit." 6. The matter, in our opinion, is concluded by the decision of the Privy Council in Ramanathan Chetty v. Mira Saibo Marikar, A.I.R. 1931 PC 28. In this case, the question of limitation was not involved. The question was whether the attachment before judgment of goods not belonging to the defendant but to a third party amounted to wrongful seizure and was actionable without proof of malice. Delivering the judgment of the Board, Lord Russel observed : "A destination must be drawn between acts done without judicial sanction and acts clone under judicial sanction improperly obtained. If goods are seized under a writ or warrant which authorised the seizure, the seizure is lawful, and no action will lie in respect of the seizure, unless the person complaining can establish a remedy by some such action as for malicious prosecution. If, however, the writ or warrant did not authorise the seizure of the goods seized, an action would lie for damages occasioned by the wrongful seizure without proof of malice." 7. If, however, the writ or warrant did not authorise the seizure of the goods seized, an action would lie for damages occasioned by the wrongful seizure without proof of malice." 7. In Sokkalingam Cheety v. Krishnaswami Ayyar, (1920) 38 MLJ 324 , a Division Bench of the Madras High Court drew a distinction between cases where the property of a third person was attached and cases where the property of the defendant was attached and was of opinion that Article 29 of the Limitation Act was restricted to cases in which the:t seizure was intrinsically wrongful but did not apply to cases where the foundation of the claim that the defendant procured the seizure of the plaintiff's property under a perfectly legal process but by misrepresentation to the Court. It held that, in such cases, Article 36 would apply. 8. We may now examine the other cases cited before us. We will first deal with the two Single Judge decisions of this Court. In Ram Narain v. Umrao Singh, 4 ALJ 548, the property of a person who was not a party to the suit, was seized under an order for attachment before judgment. He filed a suit for compensation for loss of profits and for damages suffered during the period of attachment. The suit was resisted inter alia on the ground that it was governed by Article 29 and was barred by limitation. Banerji, J. held that Article 29 was applicable and the suit was time-barred. In our opinion, this case has been correctly decided, as the attachment of the property of a person not a party to the proceedings was illegal and amounted to a wrongful seizure within the meaning of Article 29. In Manga v. Changa Mal, A.I.R. 1925 Alld. 131, the property of the defendant was attached before judgment. The suit was decreed by the trial court but was dismissed on appeal. The defendant filed a suit to recover-compensation for loss of profits etc. Kanhaiya Lal, J. held that Article 29 was not applicable to the suit. He observed : "Article 29 applies to a suit for compensation for wrongful seizure of movable property under a legal process. There was no wrongful seizure in this case on the day of on which the attachment was made. Kanhaiya Lal, J. held that Article 29 was not applicable to the suit. He observed : "Article 29 applies to a suit for compensation for wrongful seizure of movable property under a legal process. There was no wrongful seizure in this case on the day of on which the attachment was made. The order of attachment may have been passed on insufficient grounds; but the attachment, which was 'made in pursuance of that order, could not be regarded as illegal, because the property attached was the property of the then defendant ......... The detention became unlawful when the claim of the plaintiff was dismissed on the 15th March, 1921 .................... Article 29 is applicable only to those cases in which the seizure is intrinsically wrongful or perhaps to cases ................. where the seizure is made without jurisdiction." 9. In the view which we have taken, this case has also been correctly decided, as it was not a case of wrongful seizure as contemplated by Article 29. If, at the inception, the attachment does not amount to wrongful seizure, it will not become wrongful seizure by the subsequent dismissal of the suit. In such cases, the attachment or seizure becomes actionable because it has been procured maliciously or on insufficient grounds. There is thus no conflict in the two decisions referred to above. 10. Some reliance was placed by the appellant on the decision of the Calcutta High Court in Madras Steam Navigation Co. Ltd. v. Shalimar Works Ltd., AIR 1915 Calcutta 681 Here, in a suit for recovery of an amount due for repairs to a ship, the ship was "arrested." The suit was dismissed for want of jurisdiction. The owners of the ship filed a suit for compensation for wrongful seizure of the ship on the allegation that the warrant of arrest was procured maliciously and without reasonable or probable cause. One of the pleas raised in defence was that the suit was barred under Article 29. Upholding this plea, Jenkins, C. J. and Stephen, J. upheld the dismissal of the suit on the ground of limitation. They observed that the seizure was unlawful, that the case was governed by Article 29. This, in our opinion, is a clear case of wrongful seizure as the order for "arrest" was without jurisdiction and, therefore, the seizure was wrongful from the inception. They observed that the seizure was unlawful, that the case was governed by Article 29. This, in our opinion, is a clear case of wrongful seizure as the order for "arrest" was without jurisdiction and, therefore, the seizure was wrongful from the inception. Learned counsel for the appellant ,Jas placed great reliance upon the decision of a Division Bench of the Madras High Court in Pannaji Devi Chand and Co. v. Sanaji Kapur Chand, A.I.R. 1930 Madras 635. In this case, one P filed a suit against S and others for breach of contract and got certain movable property of S attached before judgment. The order for attachment was set aside on appeal on the ground that P did not establish any proper grounds for it. Thereafter S filed a suit for compensation for damages for wrongful attachment. The Madras High Court held that Article 29 was applicable and the suit was time-barred. Two propositions of law have been laid down in this case, i.e., (i) under Article 29 time begins to run from the date of the actual seizure and not from the date the seizure is declared wrongful by a competent court, for the seizure is wrongful ab initio. It does not become wrongful when declared to be so by the Court; and (ii) Article 29 applies to all cases of attachment before judgment where specific property is seized and the seizure is wrongful not only when the Court has no jurisdiction, but also when the attachment was obtained on insufficient grounds. Further, it makes no difference whether the property attached belongs to the defendant or to a third party. 11. We agree with the first proposition but, with respect, are unable to agree with the second. In our opinion, the attachment of the property of the defendant under an order of attachment passed by a competent Court does not amount to "wrongful seizure" even if it has been obtained on insufficient grounds. As already observed, such a seizure is actionable not because it is wrongful but because it has been procured maliciously or on insufficient grounds. 12. In our opinion, the suit was not governed by Article 29 of the Limitation Act and was not barred by one year's rule of limitation contained in that article. Admittedly, if the suit is not barred under Article 29, it is within time. 12. In our opinion, the suit was not governed by Article 29 of the Limitation Act and was not barred by one year's rule of limitation contained in that article. Admittedly, if the suit is not barred under Article 29, it is within time. The appeal is without merits and is hereby dismissed with costs.