B.A. Anthonimuthu Pillai vs V.K. Naganatha Aiyar and Others

Somayya, J.—One K. A. Anthonimuthu Pillai was the owner of two houses Nos. 60 and 61 in Vaniarvilai Street, Tuticorin. The municipal

tax for house No. 61 was in arrears. The owner K. A. Arithonimuthu Pillai was prosecuted. The Bench Court convicted and fined him and also

directed him to pay up the arrears. The arrears were not paid and the Bench Court then issued a warrant to attach the movables of K.A.

Anthonimuthu Pillai. The warrant proved infructuous. The Court then issued a second warrant through the Sub-Inspector of Police to attach all the

movables found in the house No. 61. That house was then occupied by the defaulter''s divided brother B. A. Anthonimuthu Pillai. Attachment was

effected by the head constable to whom the warrant was entrusted for execution by the Sub-Inspector. When the warrant was returned at one

time saying that the house was locked, the following order was passed by the Magistrates:

The warrant should be executed properly. It is no use saying that the house is under and that the accused is absent from the town. Steps should be

taken to attach all the movable properties found inside the house of the accused and the V. M.''s attakshi obtained for doing so. The warrant

should be returned for execution on or before the 10th June, 1936 without fail.

(Sd.) N.M. Roche Victoria, 21-5-1936,

President in charge.

Thereupon the head constable took the V. M., and proceeded to execute the warrant. On that occasion they"" sought the help of the 1st defendant,

the tax superintendent of the municipality and he was asked by the municipal authorities to render help to the constable. The 1st defendant pointed

out the house and latter attested the search list which was prepared by the head constable. The present suit was laid against four defendants, the

first being the tax superintendent, the second the head constable, the third the village munsif and the fourth, the Municipal Council of Tuticorin. The

plaintiff''s case is that there is enmity between him and the 1st defendant and that he got the others to execute the warrant by attaching all the

properties of the plaintiff, B. A. Anthonimuthu Pillai including movables which are not attachable u/s 60 of the CPC and under the provisions of the

District Municipalities Act which embody the prohibition contained in Section 60, Civil Procedure Code. Both the lower Courts dismissed the suit

and the appellant argues that the dismissal is wrong for the reason that his properties were attached for the arrears due by his brother K.

Anthonimuthu Pillai. He says that he was not the defaulter and that the president could only issue a warrant for the attachment of the movables of

the defaulter and that if his movables were attached, he was entitled to damages on the ground of wrongful attachment. He also says that even

wearing apparel, cooking vessels and bedding were attached all of which are not attachable and that the whole thing was engineered by the first

defendant.

Both the lower Courts have found that the plaintiff has not proved that there was any enmity between the appellant and the first respondent, the

tax superintendent and the appellant''s case that he was at the bottom of the whole thing is not proved. What has been found against the first

respondent is that he pointed out the house No. 61 to the head constable and that too on being asked to do so. Evidence to the effect that there

was a protest against the attachment of the articles on the ground that they belonged to B.A. Anthonimuthu Pillai and that the first respondent

asked the head constable to go on with his attachment notwithstanding the fact that the movables did not belong to the defaulter is disbelieved. On

these findings there was no case against the first respondent and the suit against him was rightly dismissed. He was not a party to the attachment.

He did not point out the articles to be attached and he took no part in it. He showde the house no doubt but it is not the case of the appellant that

by merely showing the house, he was guilty of any illegal conduct. The subsequent attestation of the search list does not carry the case further. I

therefore agree with the lower Courts in holding that the first respondent was not liable for any damages for the wrongful attachment, if any, of the

goods of the appellant.

The fourth respondent, the Municipal Council, must also be exonerated because there is nothing to show that the fourth respondent sought the

attachment of the movables of the appellant. They complained, as they were entitled to do, to the Magistrate that the arrears were not paid. Under

Rule 30 (1) of Schedule IV of the District Municipalities Act, if the amount due on account of any tax is not paid within fifteen days, the executive

authority may recover by distraint the amount due on account of the tax together with the warrant fee and the distraint fee. Clause (2) says:

If for any reason the distraint, or a sufficient distraint, of the defaulter ''s property is impracticable, the executive authority may prosecute the

defaulter before the Magistrate.

Under Rule 36 (1):

Every person who is prosecuted under Sub-rule (2) of Rule 30, shall be liable, on proof to the satisfaction of the Magistrate that he wilfully omitted

to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, to pay a fine not exceeding twice the amount which may

be due by him on account of the tax and the warrant fee.

Then Clause (2) of Rule 36 says:

Whenever any person is convicted of an offence under Sub-rule (1), the Magistrate shall, in addition to any fine which may be imposed, recover

summarily and pay over to the Municipal Council the amounts, if any, due under the heads specified in Clauses (a) and (6) of Sub-rule (1).

In this case the municipality tried to recover the arrears and, they failed. They tried to execute a warrant against the movables of the defaulter

and there again they were unable to get anything. Then the defaulter was prosecuted under Clause (2) of Rule 30. It was proved to the satisfaction

of the Magistrate that he wilfully omitted to pay the amount due by him. Then the Magistrate convicted him of that offence and sentenced him to

pay the fine and under Clause (2) of Rule 36, the Magistrate issued the warrant that all the movables found in premises No. 61 should be attached.

This he was certainly entitled to do and there would have been no trouble if the warrant had been confined to the movables of the defaulter, but,

under Rule 35, if the tax due on account of any building remains unpaid at the end of the period specified in Sub-rule (1) of Rule 30, the executive

authority may, if the said tax has remained unpaid for more than twelve months, require the occupier for the time being of such building to pay the

amount within a specified time and may distrain and sell any movable property found in the building. In certain cases, even the movables which do

not belong to the defaulter, if found on the premises, may be liable to attachment. In this case, rightly or wrongly, the Magistrate issued a warrant

directing the attachment and seizure of the movables found inside the house No. 61. All that the Municipal Council is said to have done is to move

the Magistrate to take action under Rule 36. This the Municipal Council was entitled to do and the further proceedings are all taken by the

Magistrate. Therefore, the Municipal Council, in moving the Magistrate to take action against the defaulter did no more than what it was justified

under the law to do and therefore the suit against the Municipal Council as well was rightly dismissed.

Then coming to the case of respondents 2 and 3--the head constable and the village munsiff--it is clear from what has just been said that they

were acting under the express orders of the Magistrate in attaching all the movables found in the house in question. The village munsif is not said to

have done anything more than what he was directed to do under the warrant, namely, to attest the search warrant. As regards the head constable,

he obeyed the warrant as he was bound to do and he is not concerned with the question whether the warrant was rightly issued or wrongly issued.

Under the Judicial Officers'' Protection Act of 1850,

No officer of any Court or other person, bound to execute the lawful warrants or orders of any * * * Judge, Magistrate, Justice of the Peace,

Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would

be bound to execute, if within the jurisdiction of"" the person issuing the same.

That is, if the warrant authorised it and he executed the warrant, he is protected under this section. The question is put beyond doubt by the

decision of the Judicial Committee in a case from Ceylon, Ramanathan Chetty v. Meera Saibo Marikar (1930) 61 M.L.J. 330 (P.C.) There

certain goods which once belonged to the insolvent were removed to a godown belonging to the appellant. The defendant in the action moved the

Court to issue a search warrant because he suspected that it was really the goods of the insolvent which were removed to the appellant''s godown.

It was however found that they had been lawfully sold to the appellant sometime before the insolvency and that the ownership passed to the

appellant and they ceased to be the insolvent''s goods., The Insolvency Court issued a search warrant and the respondent went with the officer

entrusted with the execution of the search warrant and pointed out the goods to be seized. Those goods were seized and ultimately it was found

that they were not the goods of the insolvent. The appellant sued the respondent for damages for wrongful attachment and for the loss sustained by

him. The Supreme Court of Ceylon dismissed the action holding that there was no malice proved. The Judicial Committee reversed the decision

holding that the attachment in that case authorised only the seizure of the insolvent''s goods which may be found in ''the premises belonging to the

appellant and that it did not authorise the seizure of any goods found in those premises. They say that if the seizure was not authorised by the order,

then the case stands on a different footing altogether. They said this:

A distinction must be drawn between acts done without judicial sanction and acts done 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.

In that particular case the search warrant ran in the following-terms:

These are therefore by virtue of the Insolvent Ordinance, 1853, to-authorise and require you with necessary and proper assistants to enter in the

day time into the premises aforesaid and there diligently to search for the said property and if any property of the said insolvents shall be there

found by you on such search that you seize the same to be disposed of and dealt with according to the provisions of the said Ordinance.

The warrant did not authorise the seizure of all goods found in those premises but directed him diligently to search for the property of the

insolvent and said that if any property of the insolvent was found on such a search, then, the officer Was to seize the same to be disposed of

according to the orders of the Insolvency Court. This decision gives the distinction to be drawn between a case where an act was authorised by

the warrant, however improperly, obtained, and a case where it was not authorised by the warrant. In this case, the seizure of the goods in

question was certainly authorised by the warrant. As stated already, it directed the officer in express terms to seize'' all the goods found on the

premises. The goods in question were found in the premises and their seizure was therefore authorised by the warrant. In such a case, there is no

room for any action for damages, unless, as the Judicial Committee says, the case is brought under some other head of tort such as malicious

prosecution or otherwise.

The suit was therefore rightly dismissed against all the respondents and the appeal is dismissed with costs (one set). No leave.