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Judgment
E.S. Venkataramiah, J.—These two appeals are filed against the decree passed in Original Suit No. 38 of 1966 on the file of the Civil Judge at Mangalore, The Plaintiff who is the Respondent before us and who is the son of one Srinivasa Kamath, filed the above suit for recovery of Rs. 21,032-50 jointly and severally from Defendants 1 to 7 on the basis of the following allegations:
The Plaintiff has been carrying on business in areca and other agricultural produce in Puttur from the year 1942 at his shop premises bearing door Nos. 13/95 and 13/96 and the said business exclusively belongs to him; that at or about 9-00 a.m. on 26-4-1965, Defendants 1 to 7 came to his shop; and Defendant 3 who was the Amin attached to the Court of the Munsiff at Puttur had with him at that time a warrant for attachment of movables issued in R.E.P. No. 145 of 1965 against Srinivasa Kamath, the father of the Plaintiff in execution of a decree passed in O.S. No. 288 of 1953 on the file of the said Court. One Athri Rama Prabhu had obtained a money decree in O.S. No. 288 of 1953 against Srinivasa Kamath and that the decree had remained unsatisfied. Athri Rama Prabhu had as Signed the decree in favour of one Kamalaksha Pai, who in his turn had transferred it in favour of Defendant 1 in this suit. When Defendant 3 proceeded to attach the goods lying in his shop, the Plaintiff protested saying that his goods could not be attached in execution of the decree obtained against his father. He also sent for an Advocate, Sri K.N. Mallya, practising at Puttur in order to explain the true legal position to Defendant 3. Defendant 3 who was assisted by Defendants 4 and 5, who were also the Amins attached to the Munsiffs Court at Puttur, did not pay any heed to the protests of the Plaintiff. After Mallya arrived, he also persuaded Defendants 3 to 5 not to proceed with the attachment of the goods belonging to the Plaintiff. All the Defendants who were present were informed that Srinivasa Kamath, judgment-debtor in R.E.P. No. 145 of 1965 had no sort of interest in that shop and the business which was being carried on there and that Srinivas Kamath was not present at that time in the shop. In the meanwhile, two other respectable persons of Puttur, namely, Hanumanth Bhat and Manjunatha Kini offered to stand as sureties. The Plaintiff also suggested that he was willing to offer cash security in order to avert the attachment of the goods. The appeals made by the Plaintiff, Sriyuths Mallya, Hanumantha Bhat and Manjunatha Kini were all in vain. Defendants 3 to 5 refused to accept the sureties and the cash security offered by and on behalf of the Plaintiff and attached thirty bags of biligotu areca weighing 1893 kgs. Of the value of about Rs. 13,000/-. No attachment proceedings were drawn up at the premises of the shop. The goods which were seized were loaded into a lorry bearing number MYX 4938 which had been brought by the Defendants and they were taken away by all the Defendants. It was alleged that the conduct of the Defendants amounted to trespass and that the Plaintiff had been wrongfully deprived of his goods by Defendants 1 to 7 who acted in concert with a view to causing loss to the Plaintiff. Since on 26-4-1965 the Munsiff''s Court at Puttur had been closed on account of summer vacation, the Plaintiff went to Mangalore and moved a petition before the Vacation Judge to release the goods that had been illegally attached, after depositing a sum of Rupees 5,000/-. On the same day, the Vacation Judge ordered the release Of the goods and directed the Bailiff of the Munsiffs Court at Puttur to release the goods. From the papers that were later on lodged with the Court of the Munsiff by Defendant 3, it was known that the goods had been entrusted to Defendants 1 and 2 as sureties by Defendant 3. All the attempts made to serve Defendants 1 and 2 with the order for release of the goods failed since they were not traceable. It was further alleged that Defendants 6 and 7 apart from otherwise assisting Defendants 1 to 5 in illegally seizing the goods, certified on the attachment warrant regarding the solvency of Defendants 1 and 2 even though they were persons of no means at all and that the goods were taken from the place of attachment to the residence of Defendant 5 at Kanakamajalu situate about 14 miles away from Puttur Town. When it was not possible to recover the goods which had been illegally attached or their value even after a claim petition filed by the Plaintiff under Order XXI, Rule 58 of the CPC been allowed, the Plaintiff caused registered notices issued to all the Defendants on 10-9-1965 calling upon them to make good the loss which the Plaintiff had sustained. The Defendants sent replies containing false and frivolous allegations. Thereafter the Plaintiff instituted the above suit against all the Defendants on the basis that they were joint tortfeasors who were jointly and severally liable to pay the damages for the wrongful attachment made on 26-4-1965. The Plaintiff estimated the value of the goods attached at Rs. 13,000/- and estimated the profits which he would have made but for the seizure at Rs. 2,000/-. He claimed Rs. 5,000/- as damages for mental agony. On the total sum of Rs. 20,000/- so claimed, the Plaintiff claimed interest at 6% per annum from 26-4-1965 upto the date of institution of the suit amounting to Rs. 982.50; Rs. 50/- towards notices charges, and future interest at 6% per annum.
Defendants 1 to (sic) contested the suit and Defendant 7 remained ex parte. Defendant 1 who was the assignee decree-holder pleaded that the shop in question belonged to Srinivasa Kamath and that the Plaintiff had no interest in the goods that had been attached. He denied that he had acted in collusion with the other Defendants in order to cause loss to the Plaintiff. He further pleaded that pursuant to the warrant that had been issued by the Munsiffs Court in execution of the decree an attempt was made by Defendant 3 to attach the goods on 23-4-1965 and that since the judgment- debtor obstructed, the Court was requested to allow the warrant to be executed with the help of the police and by breaking open, the locks, if any. After the Court passed necessary orders on the request so made, the warrant was executed on 26-4-1965. On that day Srinivasa Kamath who was present at the shop stated that the goods belonged to him and that the goods were, therefore, lawfully attached. He further pleaded that Sri K.N. Mallya, Advocate, who came to the spot tried to influence Defendant 3 in several ways in order to prevent attachment and having failed in his attempts to do so, began to threaten Defendant 3. It was not true that either the Plaintiff or anybody on his behalf told either Defendant 1 or Defendant 3 that the shop belonged to the Plaintiff and that the goods should not be attached on that account. It was further alleged that neither Hanumantha Bhat nor Manjunatha Kini offered themselves as sureties. The case of the Plaintiff that he offered cash security was also denied. The allegation in the plaint that the attachment proceedings were not drawn up at the place of attachment was also denied.
Defendant 1 further denied that the lorry, MYX. 4938, had been brought and that the attached goods were taken away in that. The attached goods were entrusted to the custody of Defendants 1 and 2. After the goods were directed to be released, the attached goods were brought to Puttur for being delivered to the Amin at the Grama Chavadi on 19-6-1965, but the goods had to be taken back by Defendant 2 to his house at Dalampadi since the Amin did not turn up. In a suit instituted against Defendant 2 in O.S. No. 262 of 1965 on the file of the Munsiff at Kasargod, the said goods were attached from the custody of Defendant 2 and hence they could not be produced. It was pleaded that the goods that were attached were worth only about Rupees 5,000/-. The allegation that Defendants 1 to 7 had colluded with each other in order to effect wrongful attachment and to cause consequent loss to the Plaintiff, was denied. It was urged that the suit was liable to be dismissed. Defendant 2 pleaded more or less on the same lines as Defendant 1. He admitted that the goods had been entrusted to his custody at the time of the attachment and that he had brought the goods to Puttur on 19-6-1965 to Grama Chavadi after coming to know of the orders of the Court to produce the attached goods, but they could not be delivered because the Amin who had been deputed to receive the goods from him did not come to the Grama Chavadi on that day. Thereafter the goods were taken back by him, but subsequently the very same goods were attached by the Munsiffs Court, Kasargod in a suit instituted against him. Therefore, he had been prevented from circumstances beyond his control from producing the attached goods. He denied that all the Defendants acted in concert. He, therefore, prayed for the dismissal of the suit.
Defendant 3 in his written statement pleaded that the shop in question belonged to Srinivasa Kamath and that there was no collusion or conspiracy among Defendants 1 to 7 in order to cause loss to the Plaintiff. He alleged that pursuant to the warrant which was entrusted to him for execution, he effected the attachment in good faith and in accordance with law. He had sought police aid in order to do so and it had been ordered. He denied that the goods attached belonged to the Plaintiff and that they were worth more than Rupees 13,000/-. According to him, the estimated value of the goods was in the order of Rs. 5,000/-. It was pleaded that at the time of the attachment, Srinivasa Kamath judgment-debtor was present and that Defendants 4 and 5 were not present and that Sri K.N. Mallya, Advocate, was sent for by Srinivasa Kamath and not by the Plaintiff. On his arrival, Sri Mallya sent away the judgment-debtor from that place. The allegation in the plaint that Sri Mallya requested Defendant 3 not to proceed with the attachment because the goods belonged to the Plaintiff, was denied. Similarly, the allegation that Hanumantha Bhat and Manjunatha Kini offered to stand as sureties and that the Plaintiff offered to give cash security and that Defendant 3 refused to accept the same, was also denied by Defendant 3. After the attachment was complete, proceedings were drawn up in proper form and the goods were entrusted to the custody of Defendants 1 and 2 who agreed to act as sureties. The allegation in the plaint that lorry MYX. 4938 was brought to carry the attached goods and that the goods were loaded into it and taken away in accordance with the directions given by Defendants 3 to 6, was denied.
He pleaded that he was not concerned with the manner in which the sureties dealt with the goods after they were entrusted to them. It was further pleaded that even though there was any error of judgment on his part in the execution of the warrant, since he had acted with diligence he was entitled to the protection under the Judicial Officers Protection Act. Defendant 4 pleaded that he had nothing to do with the execution of the warrant in question and that he was in no way concerned with the recovery of the decretal amount. He denied that, he had participated in the attachment and that he was assisting Defendant. 3. It was no doubt admitted by him that he was at the spot where the attachment was effected only as a spectator, but that there was no occasion for him to discuss the matter either with the Plaintiff or Sri K.N. Mallya. He denied that the attached goods belonged to the Plaintiff. Defendant 5 similarly pleaded that he was not concerned with the attachment proceedings and that he had not acted in concert with the other Defendants. The allegations in the written statements of Defendants 4 and 5 are in many respects common. The case of Defendant 6 was that on 26-4-1965 he went to the shop which belonged to Srinivasa Kamath with two bags of area (sic) morning and that, he had sold then to Srinivasa Kamath and that when he was still there, Defendant 3 came in order to effect the attachment. After the attachment was effected, he attested the proceedings as a witness. He denied that he had certified regarding the solvency or fitness of Defendants 1 and 2 to act as sureties. He also denied that he had anything to do with the goods that were attached and that there was any collusion amongst the Defendants as pleaded in the plaint. The allegation that Defendant 4 and he took Defendants 1, 3 and 5 into confidence and that all of them were jointly responsible for illegally removing the goods belonging to the Plaintiff was also denied by him.
On the basis of the above pleadings the Court below framed nineteen issues. The Plaintiff examined on his behalf seven witnesses including himself and on behalf of the Defendants fifteen witnesses including Defendants 3 to 6 were examined. A large number of documents were marked as exhibits in the case by the parties. At the conclusion of the trial, the Court below held, (i) that the goods that had been attached belonged to the Plaintiff; (ii) that the attachment was not legal and proper; (iii) that the attachment has been effected illegally in collusion by the Defendants and that the acts of the Defendants amounted to trespass; (iv) that Defendants 3 to 5 acted mala fide and in excess of their authority; (v) that Defendants 3 to 5 were not entitled to the protection of Judicial Officers'' Protection Act; (vi) that all the Defendants had conspired and acted in collusion in depriving the Plaintiff of the goods illegally, and (vii) that the Defendants were jointly and severally liable to pay the Plaintiff a sum of Rs. 11,400/- towards the value of the goods attached, Rs. 2,000/- as damages for the loss of reputation and mental agony and Rs. 1,000/- towards loss of profit which the Plaintiff would have made by the sale of areca. The Court below, therefore, made a decree for Rs. 14,400/- against the Defendants.
Aggrieved by the decree of the Court below, Defendants 3, 4, 5 and 7 have filed R.F.A. No. 26 of 1969 and Defendant 6 has filed R.F.A. No. 27 of 1969. Defendants 1 and 2 have not filed any appeal.
The points that arise for consideration in these appeals are:
Whether the Plaintiff is the owner of the shop from which the goods were attached and whether the attached goods belonged to the Plaintiff?
Whether the execution of the attachment warrant against the Plaintiff was wrongful ?
Whether all or any of the Defendant are responsible for the loss or damage suffered by the Plaintiff? And
What is the extent of damages the Plaintiff is entitled to?
It is not disputed that 30 bags of areca were attached on 26-4-1965 pursuant to a warrant of attachment issued in R.E.P. No. 145 of 1965 in execution of a decree passed in O.S. No. 288 of 1953 at shop premises bearing door Nos. 13/95 and 13/96 of Puttur Town. Exhibit P-82 is the warrant of attachment. It is seen from the said warrant that Defendant 1 had got it issued in order to recover a sum of Rs. 5,612-14 from Srinivasa Kamath, the father of the Plaintiff. The decree in O.S. No. 288 of 1953 was passed on 20-10-1953. Even before the said decree was passed, the Plaintiff had issued a notice as per Exhibit P-79 to Athri Rama Prabhu (D.W. 15) who was the Plaintiff in the said suit informing him that the Plaintiff was not liable for the decree that was likely to be passed in the said suit. D. W. 15 admitted in the course of his deposition that he had received the original of Exhibit P-79. In Exhibit P-79 it was stated that the business which was being carried on by the Plaintiff in the name of ''Ganapathi Srinivasa Kamath'' and the house in which he was residing belonged exclusively to the Plaintiff and that Srinivasa Kamath had no interest in them. It was also mentioned that the records maintained by the several offices and the accounts of the dealers with whom he had business transactions, would establish the said fact. The Plaintiff, therefore, warned D.W. 15 that in the event of the properties belonging to the Plaintiff being proceeded against for recovery of the monies due under tin; decree, D.W. 15 would be liable for damages to the Plaintiff.
Until 1965 no action had been taken to attach the goods or properties in the shop in question in order to realise the decretal amount. The Plaintiff in addition to the oral evidence, has produced before Court a large number of documents in support of his case that he was the exclusive owner of the shop bearing Nos. 13/95 and 13/96 of Puttur. Exhibits P-l to P-25 are the Day Books maintained in the said shop between 1942 and 1965. The name of the Plaintiff, namely, M. Ganapathi Srinivasa Kamath, Merchant, Puttur, is mentioned in all these books. Exhibits P-26 to P-41 are the ledgers in respect of the shop in question for the period between 1950-51 and 1965- 66. On all these ledgers the name of the Plaintiff is found. Exhibits P-l to P-25 and P-26 to P-41 are account books maintained in the ordinary course of business. They appear to have been checked by the officers of the Commercial Tax Department and the Income Tax Department. The genuineness of these books were also not questioned either before the Court below or before us. The number of transactions to which these books refer, show that the Plaintiff has been trading on a large scale in areca nut, cashew nut, ramapatra and other agricultural and forest produce from 1942 onwards even though at the commencement the business was started on a very small scale. It is to be seen that from year to year the volume of business has gone on gradually expanding.
It is also to be seen from the said books that the Plaintiff was paying regularly the sales tax, Income Tax and other taxes all along. Exhibit P-44 is a licence issued in favour of M, Ganapathi Srinivasa Kamath, Merchant, Puttur, the Plaintiff, u/s 5(3) of the Madras Commercial Crops Market Act by the Deputy Commissioner of South Kanara on 25-4-1965. Exhibit P-45 is a similar licence issued on 19-6-1964 and Exhibit P-46 is a similar one issued on 19-1- 1963. Exhibit P-47 is a certificate dated 12-6-1954 issued by the Deputy Commercial Tax Officer of Puttur certifying that the Plaintiff had been paying sales tax from 1942-43. Exhibits P-48 and P-49 are challans under which the Plaintiff has paid sales tax due from him. Exhibit P-52 is an order of assessment in respect of the year 1-4-1957 to 30-9-1957 passed by the Commercial Tax Officer in respect of the sales tax payable by the Plaintiff. Exs. P-53 to P-56 are assessment orders passed by the Income Tax Dept. in respect of the years 1954-55, 1960-61, 1962-63 and 1963-64 respectively. In all those orders, it is seen that the Plaintiff M. Ganapathi Srinivasa Kamath is the Assessee and his status is shown as ''individual''. The business of the Plaintiff is not assessed on the basis that it was a partnership firm or joint family firm. A reading of those assessment orders would show that they had been passed in respect of the income which the Plaintiff had derived from his business as its sole proprietor.
The building in which the shop is situated belongs to one Jalajakshamma and the Plaintiff has sworn that he has taken it from her as a lessee. Exhibit P-72 series consist of eleven rent receipts issued by Jalajakshamma. The earliest of them bears the date 1-8-1959 and the latest bears the date 1-6-1965. The fact that the Plaintiff was paying rent to Jalajakshmma in respect of the shop premises is also borne out from Exhibits P-l to P-41. Exhibits P-73, P-74 and P-75 are Bank Pass Books issued by the Canara Bank Ltd., and Exhibit P-76 is the pass Book issued by the State Bank of Mysore, Puttur. The Plaintiff''s name is found in all those books as the person to Whom the concerned accounts related. It is no doubt true that in Exhibit P-75 the name of the depositor is mentioned as M/s. M. Ganapathi Srinivasa Kamath. That by itself does not mean that the account belongs to more than one person. The Plaintiff has sworn that the current account covered by the said Pass Book was his individual account.
If the Defendants wanted to show that the said account related to more than one person, they could have summoned the Bank to produce the records which are usually maintained by the Bank to show whether the account relates to an individual person or to an association of persons. No such attempt has been made in this case. There is nothing to disbelieve the version of the Plaintiff that the said account is his individual account. Apart from the oral statement of Defendants 3, 4, 5 and 6 stating that the business in the shop premises Nos. 13/95 and 13/96 belongs to Srinivasa Kamath, we do not have any documentary evidence on their behalf in support of their case. Defendant 6 who was examined as D.W. 11 in the case, even though in his examination-in-chief, and in the early part of his cross-examination maintained that the shop belonged to Srinivasa Kamath, at a later stage of his cross-examination had to admit as follows, "I have come to know now that the shop which I called or presumed to be the shop of Srinivasa Kamath, belongs to the Plaintiff". The evidence in respect of the godown which belonged to the Plaintiff also is to the same effect.
In view of the overwhelming documentary evidence available in the case, we are of the opinion that the finding of the Court below that the Plaintiff was (sic) exclusive owner of the business which was being run in premises bearing Nos. 13/95 and 13/96 at Puttur and at the godown which is situate nearby, cannot be disturbed. It, therefore, follows that the areca which was admittedly seized from the said shop belonged, to the Plaintiff. Some attempt was no doubt made by the Defendants in the court below by examining D. Ws. 3 to 9 to show that either the goods in the shop did not belong to the Plaintiff or to show that the accounts maintained by the Plaintiff with regard to the stock, were not correct. The case of the Plaintiff as disclosed from his evidence was that the areca that had been attached had been purchased by him from several persons on the date on which the attachment was effected but before the attachment and that he had made entries with regard to the said purchase in the account books. It was mentioned by him that he had given at one or two places the particulars regarding the areca nut that had been so purchased and which was later on attached in order to facilitate proof of identity of the goods.
It was argued on behalf of the Defendants that from the above statement, an inference should be drawn that the account books had been tampered with by the Plaintiff in order to support his case. We do not find that there is any substance in the above contention. It is not disputed that thirty bags of areca were seized from the shop in question on 26-4-1965 and that they were removed from the premises belonging to the Plaintiff. There is no reliable evidence adduced on behalf of the Defendants that the attached goods belonged to anybody else. It is not shown by them that Srinivasa Kamath had any right, title or interest either in the business or the goods found in the shop. In the circumstances of the case, the comment made on behalf of the Defendants regarding the entries that they had been made in the accounts books after the attachment was effected loses all significance. We, therefore, hold that the goods that were seized on 26-4-1965 pursuant to the warrant of attachment Exhibit P-82 that had been issued, belong exclusively to the Plaintiff and that Srinivasa Kamath, judgment-debtor in the execution proceedings had no right, title or interest in them.
The lower court has found that the value of 30 bags of areca nut which were attached on 26-4-1965 and removed from the possession of the Plaintiff was Rs. 11,400/- only. The correctness of the above finding has not been questioned before us. The said finding is also supported by the evidence placed on record by the Plaintiff. We, therefore, confirm the above finding.
The next question for consideration is whether the attachment of the goods belonging to the Plaintiff in execution of a decree under which he was not liable to be proceeded against is wrongful and whether it is actionable. The law in India on the above question is fairly well settled.
In Kissorimohun Roy v. Harsukh Dass ILR (1890) Cal 436 (PC) the Privy Council had occasion to deal with the question regarding the liability of a decree-holder to compensate the actual owner of the goods attached in execution of a decree obtained by the decree-holder when it turned out that the owner of the goods was not liable to be proceeded against under the decree. The Appellants in that appeal had obtained a money decree against two persons. In execution of the said decree, they requested the court to attach 1500 bales of jute which were lying in the premises of the Respondent alleging that the said goods belonged to the judgment-debtors. Accordingly the executing court issued a parwana directing its Nazir to proceed to the spot and to make an inventory of the bales of jute. The Nazir in execution of the warrant proceeded to the Respondent''s premises and attached a quantity Of jute which was pointed out to him by the Appellants as the property of one of the judgment-debtors. The Respondent thereupon preferred a claim to the goods u/s 278 of the CPC which was then in force. The said claim having been disallowed, the Respondent instituted a suit in order to establish his rights over the attached goods and for damages for wrongful attachment. The said suit having been decreed by the Calcutta High Court, the Appellants appealed to the Privy Council. In that appeal Lord Watson speaking for the Judicial Committee observed as follows:
The Appellants mainly relied upon the English case of Walker v. Olding (1862) 1 H&C 621 which was cited as an authority for the proposition that a judgment-creditor is not responsible for the consequences of a sale, under a judicial order, of goods illegally taken in execution in satisfaction of his debt. (1862) 1 H&C 621 would have been an authority of importance had the law of execution been the same in India as in England, but there is in that respect no analogy between the two systems. In England the execution of a decree for money is entrusted to the Sheriff, an officer who is bound to use his own discretion, and is directly responsible to those interested for the illegal seizure of goods which do not belong to the judgment-debtor. In India warrants for attachment in security are issued on the ex parte application of the creditor, who is bound to specify the property which he desires to attach, and its estimated value. In the present case, by the terms of the parwana, no discretion was allowed to the officer of Court in regard to the selection of the goods which he attached; his only function was to secure under legal fence all bales of jute in the Respondent''s premises which were pointed out by the Appellants. The illegal attachment of the Respondent''s jute on the 28th November, 1883 was thus the direct act of the Appellants, for which they became immediately responsible in law; and the litigation and delay, and consequent depreciation of the jute, being the natural and necessary consequences of their unlawful act, their Lordships are of opinion that the liability which they incurred has been rightly estimated at the value of the goods upon the day of the attachment.
In AIR 1932 28 (Privy Council) , the Privy Council held that a distinction must be drawn between acts done without judicial sanction and acts done under judicial sanction improperly obtained.
goods are seized under a writ or warrant which authorized 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. In the case before the Board, once it was shown as it has been to their Lordships'' satisfaction, that the Respondent was the cause of the Appellant''s goods having been seized by the Fiscal under a warrant which only directed him to seize property of the firm, the case against the Respondent was complete, and he became liable to the Appellant in damages without proof of malice. We have held that the warrant which had been issued as per Exhibit P-82 did not authorise the seizure of the goods belonging to the Plaintiff who was not at all liable under the decree in execution. The warrant also did not specifically authorize seizure of goods lying in premises bearing Nos. 13/95 and 13/96 or the godown where the Plaintiff was carrying on business. In those circumstances, the attachment of the goods belonging to the Plaintiff was not warranted.
Following the decisions in Kissorimohun Roy''s case (ILR 17 Cal 436) and AIR 1932 28 (Privy Council) P.B. Mukherji, J. observed in Bajranglal Poddar v. Sitaram Kedia AIR 1949 Cal 457 that:
Where the warrant of attachment authorizes the Sheriff to levy attachment of moveable property belonging to judgment-debtor, he is not entitled to levy it on the goods not belonging to the judgment-debtor but to somebody else, and if he does, the owner of the goods can sue the judgment-debtor for wrongful attachment without any allegation and proof of malice or want of reasonable or probable cause.
It was further held by him that even if the goods were seized under a bona fide mistake, such bona fide mistake was no defence for an action. It was enough for the owner of the goods to prove that they had been taken away without any lawful justification i.e., wrongfully. Similarly, in Qaim Husain Vs. L. Pirbhu Lal and Another, , it was held that for a suit for damages it was not necessary to prove that the attachment was malicious and without reasonable and probable cause. In view of the finding recorded already by us that the goods in question belonged to the Plaintiff and he was not in any way liable under the decree in execution, Defendant 1 at whoso instance the warrant of attachment had been issued is liable to pay damages lo the Plaintiff for wrongful attachment resulting in unauthorized deprivation of the Plaintiff''s possession of the goods and subsequent conversion of the same. A conversion is an act of willful interference without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. Under those circumstances, the person responsible for the commission of the said tort and all those who either aided or abetted him in doing so or who acted as accessories in its commission or who acted in concert in its commission, would also be liable for damages, as joint tortfeasors.
When there is conceited action among several people with a common design with a view to causing damage to another, all of them are liable for the entire result. "All coming to do an unlawful act, and of one party, the act of one is the act of all of the same party being present" (vide Heydon''s case, (1612) 11 Co Rep 5 a. The same principle was followed in Smithson v. Garth (1691) 3 Lev 324, in which it was held that where the Plaintiff was attacked by three persons, all would be liable for the entire damage although only one committed battery, another imprisoned him and the third stole buttons. In Salmond on Torts, 15th Edn. at page 592 under the caption "Who are joint tortfeasors", we find the following passage:
Where the same damage is caused to a person by two or more (sic) those wrongdoers may be either joint or independent tortfeasors. Persons are to be deemed joint tortfeasors. within the meaning of this rule whenever they are responsible for the same tort that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more person: at once.
This happens in three cases agency, vicarious liability and common action i.e. where a tort is committed in the course of a common action or a joint act done in pursuance of a common purpose, Dealing with the nature of liability of joint tortfeasors, the learned author proceeds to state at page 593 as follow:
If a number of persons jointly participate in the commission of a tort, each is responsible, jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation. That is to say, the person injured may sue any one of them separately for the full amount of the loss or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them....
The above view expressed by the learned author regarding the liability of (sic) tortfeasors has been approved by the Supreme Court in Khushro S.Gandhi and Others Vs. N.A. Guzder and Others, , in which it was held that the liability of joint tortfeasors was joint and several and that being so, a release of one of the tortfeasors, would not result in the discharge of the liability of the other tortfeasors. But Sri V. Krishnamurthy, learned Counsel for Defendant 6, contended that on the facts and circumstances of the present case it was not possible at all to extend the liability for damages for wrongful attachment to the Defendants other than Defendant 1, for according to him in the case of wrongful attachment, the only person who would be responsible for the loss suffered by the person whose goods had been wrongfully attached would be the decree-holder. In support of the above contention he relied upon the observation of the Privy Council in Kissorimohun Roy''s case ILR (1890) Cal 436 (PC) that ''in all cases of illegal attachments, the decree-holders became immediately responsible in law''. He wanted us to understand the expression ''immediately'' as ''exclusively'' and hold that no person other than the decree-holder could be answerable in an action for damages for wrongful attachment. We find it difficult to agree with the submission of Sri Krishnamurthy. If the action of the decree-holder in bringing about a wrongful attachment amounts to a tort which is act enable in law, then all persons who acted in concert in the commission of the said tort would be liable as joint tortfeasors as already explained above.
Another contention urged by Sri Krishnamurthy may conveniently be dealt with at this stage. He argued that the attachment having been effected by Defendant 3, who was an officer of a court, pursuant to a judicial warrant it could not be said that Defendant 3 and the other Defendants had acted in collusion or collectively with the object of committing a tort. It was contended that the execution of a process of a court was in its very nature an innocent act, and that, therefore, neither Defendant 3 nor Defendants 4 to 7, could be considered as joint tortfeasors along with Defendant 1 the decree-holder who alone was responsible in law for the consequence of unauthorized seizure of the goods of the Plaintiff. We cannot accept the above proposition without any qualification. If in the course of the execution of the warrant issued by the court Defendant 3 is shown to have acted within his lawful authority and if there is no evidence to show that there is no collusion amongst Defendant 3 on the one hand and the other Defendants on the other, then probably the submission made by Sri Krishnamurthy would be acceptable. But if the court comes to the conclusion that the Defendant 3, the Amin, had acted outside his lawful authority and in a capricious way and that the other Defendants either abetted or aided him in doing so, then all the Defendants would be responsible for the loss sustained by the Plaintiff as a consequence of wrongful attachment. We shall now proceed to consider the question whether Defendants 1 to 7 had acted in concert with the object of causing loss to the Plaintiff as alleged by him.
In so far as Defendants 1 and 2 are concerned, it has to be observed that their liability is beyond dispute. Defendant 1 was the decree-holder at whose instance the warrant of attachment had been issued pursuant to which the property belonging to the Plaintiff who was not a judgment-debtor, was seized. In those circumstances, it has to be held on the basis of the decision in Kissorimohun Roy''s case ILR (1890) Cal 136 (PC) and other cases referred to above, that he would be liable for damages. Defendants 1 and 2 are also liable on the ground that the goods that had been attached were entrusted to their custody as sureties with the condition that the goods must be produced before the court whenever they were required to do so. Admittedly in this case, Defendants 1 and 2 did not produce the goods before the court and no information is available regarding the manner in which they were disposed of apart from the statement that the said goods had been attached pursuant to a warrant issued by the Court at Kasargod in Kerala State and removed to that court. Defendants 1 and 2 have also not preferred any appeal against the decree passed against them in the suit.
In order to determine the liability of Defendants 3 to 7, it would be necessary to refer to certain events which had taken place prior to the date of attachment. After obtaining a money decree against Srinivasa Kamath, the father of the Plaintiff, in O.S. No. 288/53 on the file of the District Munsiff, Puttur, on 20-10-1953, Athri Rama Prabhu, D.W. 15, filed the first execution application for recovery of the decretal amount in R.E.P. No. 1 of 1954 as per Exhibit P-98. In that execution application he had prayed for the arrest of the judgment-debtor and also for the attachment of his movables in order to recover the money due to him. In that case Srinivasa Kamath appeared and filed his objections and the said execution application was allowed to be dismissed as not pressed on 29-6-1954. In the successive execution applications which were filed thereafter as borne out from Exhibits D-21, P-99, P-100, P-101, and P-102, D.W. 15 was not able to recover the amount since in all those cases Srinivasa Kamath appealed and opposed the execution proceedings. The last of the execution application filed by D.W. 15 was dismissed on 30-7-1959.
Thereafter he assigned the decree in favour of one B. Kamalaksha Pai who filed R.E.P. No. 279/61 for recovery of the decretal amount. In that case also Srinivasa Kamath appeared and filed his objections. The said execution application was again allowed to be dismissed on 21-12-1960 as per Exhibit P-103 after the assignment in favour of Kamalaksha Pai was recognized. Thereafter Kamalaksha Pai filed R.E.P. No. 446 of 1964 which was dismissed on 22-1-1965 as per Exhibit P-104. In the meanwhile Kamalaksha Pai had on 7-1-1965 assigned the decree in favour of Defendant 1 who sued out execution in R.E.P. No. 42 of 1965. In that case notice was ordered to the judgment-debtor Srinivasa Kamath. The said petition was allowed to be closed on 9-4-1965 after recognizing Defendant 1 as the assignee decree-holder vide Exhibit P-106. Almost within a week after the dismissal of the said application, Defendant 1 filed R.E.P. No. 145 of 1965 on 17-4-1965 in order to recover the decretal amount from Srinivasa Kamath and obtained an order for the attachment of the movables of the judgment-debtor. Exhibit P-107 is the copy of the said execution application and Exhibit P-82 is the certified copy of the attachment warrant issued in that case. We are concerned in these appeals with the proceedings in the said execution application.
We have already referred earlier to the issue of a notice as per the original of Exhibit P-79 on 14-9-1953 by the Plaintiff to Athri Rama Prabhu, D.W. 15, even before Athri Rama Prabhu secured the decree in question intimating him that the Plaintiff was not liable for the amount claimed in O.S. No. 288/53. It is in the evidence of the Plaintiff who has been examined in this case as P.W. 1 that in or about the year 1960-61, Defendant 4 who was the Amin attached to the Munsiff''s Court at Puttur and Defendant 6 approached the Plaintiff and requested him that he should pay up the decretal amount under the decree that had been obtained by D.W. 15 and that the Plaintiff had told them that he was not agreeable to pay the amount due under the said decree.
Sri K.N. Mallya an Advocate of Puttur Bar, who has been examined as P.W. 6 and who was appearing for Srinivasa Kamath in the execution proceedings referred to above, has stated in his deposition that in or about March 1965 Defendant 4 had approached him and had a talk about the decree-debt. It is further stated by P.W. 6 that Defendant 4 told him that the decree in question had been assigned in favour of his friend and that he had been asked by his friend to recover the decretal amount after waiving interest provided it was paid. It is further stated that P.W. 6 intimated the same to Srinivasa Kamath and that Srinivasa Kamath in reply told him that he had no means to pay any part of the decretal amount. The person referred to as the friend of Defendant 4 can only be Defendant 1 as the said talk took place subsequent to the date of assignment of the decree in favour of Defendant 1.
The attachment warrant Exhibit P-82 was handed over to Defendant 3, who has been examined as D.W. 1, on 17-4-1965 and that it was returnable by 24-4-1965 which happened to be the last working day before the commencement of summer vacation for the civil courts. During summer vacation all the powers exercisable by the Munsiff who had issued the warrant of attachment could be exercised only by the Vacation Judge at Mangalore. It is the case of Defendant 3 that he went to the shop in question on 23-4-1965 where the judgment-debtor Srinivasa Kamath was carrying on business in order to execute the warrant and that Srinivasa Kamath was present in the shop. He could not effect attachment on that day because Srinivasa Kamath objected to the attachment. Hence he had to make a report to the court seeking police aid and permission to break open the locks, if any, in order to attach the goods. In the report of the Amin Defendant 3, dated 27-4-1965 made on the attachment warrant Exhibit P-82, he has stated as follows:
On 23-4-1965 I along with the Petitioner went to the shop No. 13/95 in which the Respondent was trading in Puttur Kasaba and read-over the contents of this order to him. Then he with some others resisted me from executing the order. I then submitted a report for police aid and for breaking open the locks etc. to the Court.
Exhibit D-24 is the report dated 23-4-1965 made by Defendant-3 praying for permission to break open the locks with police aid in order to execute the warrant. In that it was stated by him that the judgment-debtor Srinivasa Kamath and his men resisted him when he went to the premises of the shop in order to attach the goods. Exhibit D-23 is the application filed by Defendant-1 for permission to take police aid and to break open the locks at the time of attachment. On the said application, the court made an order permitting Defendant-3 to execute the warrant with police aid. At this stage it may be mentioned that it was alleged by Defendant-3 that he also prepared a mahazer or panchanama on 23-4-1965 at the spot regarding what took place near the shop as per Exhibit P-l 10. The said mahazer purports to be one signed by the residents of Puttur and it is signed by one Mahabala Shetty and another whose signature is not legible. In that it is stated that the judgment-debtor and some persons obstructed the attachment of goods on 23-4-1965. The said mahazer was actually submitted to the Court on 27-4-1965 and Defendant-3 in his deposition has stated that he submitted a separate report to the Court for the purpose of securing police aid on 23-4-1965. It is in the evidence of the Plaintiff that Mahabala Shetty one of the attesters of Exhibit P-110. was no other than brother of defendarut-7.
Neither Mahabala Shetty nor the other person who had signed Exhibit P-110 was examined as a witness on behalf of the Defendants. The Plaintiff in his deposition has clearly stated that he was in his shop on 23-4-1965 throughout the day except from 12-30 p.m. to 1-00 p.m. and that Defendant-3 had not come to his shop in order to attach the goods. Having regard to the fact that we have held that the shop belongs to the Plaintiff and that Srinivasa Kamath had no interest in it would be difficult to hold that Srinivasa Kamath offered any resistance on 23-4-1965 as alleged by Defendant-3. Secondly, the above conduct attributed to Srinivasa Kamath on 23-4-1965 is inconsistent with the case sought to be established on behalf of the Defendants that on 26-4-1965 Srinivasa Kamath voluntarily delivered the goods that were attached by Defendant-3 without any obstruction. Having regard to the aforesaid circumstance and to what took place on 26-4-1965 and on subsequent dates, we are of the opinion that the mahazer Exhibit P-110, the application made to the Court on 23-4-1965 by Defendant-1 to give police aid in order to effect attachment and the oral evidence given by Defendant-3 on the above question, are all clumsy attempts made by Defendant-3 and other persons concerned at creating false evidence in order to facilitate procrastination of the attachment proceedings so that after the Munsiff''s Court at Puttur was closed for summer vacation, they could seize the goods belonging to the Plaintiff without the fear of any immediate intervention by the Court at Puttur. We are not, satisfied about the case of Defendant-3 that he visited the shop of the Plaintiff on 23-4-1965 in connection with execution of the warrant of attachment.
We shall now proceed to the next aspect of the case relating to the events that took place on 26-4-1965. It is the case of the Plaintiff that the goods in question were removed from his shop, after they were seized, in a lorry bearing number MYX 4938. It is in the evidence of the Plaintiff that the said lorry was driven away with the goods and some of the Defendants by P.W. 5 R. D''Souza who was acting as the driver of the said lorry. The Plaintiff has also deposed that on the evening of 26-4-1965. P.W. 5 D''Souza told him that the attached goods had been deposited in the house of Defendant-6 at Kanakamajalu. P.W. 5 has stated in his evidence that on the evening of 25-4-1965 he was asked by K.P. Shetty examined as D.W. 13 and who was the owner of the lorry to take the lorry to Defendant-6 at Kanakamajalu which is a place 14 miles away from Puttur Town and that he accordingly took the lorry to Kanakamajalu. He has further stated that he spent that night in the house of Defendant-6 as Defendant-6 told him that they could leave the place the next morning. Defendant-6 and ten to fifteen other persons got into the lorry at about 7.00 a.m. on the morning of 26-4-1965 and all of them came to Puttur. All the persons other than Defendant-6 who had got into the lorry were asked to get down at Dharbe locality in Puttur which was about four furlongs away from the shop of the Plaintiff. Thereafter Defendant-6 came in the lorry to the house of Defendant-4. Just at that time a car also came near the house of Defendant-4 in which there were some persons. Defendants-4 and 6 and some others got into the lorry again and they followed the car which went ahead of them. The persons who got into the lorry at that place were the same persons who had been earlier asked to get down at Dharbe locality.
He further stated that Defendants 4 and 6 directed him to follow the car and to stop where the car stopped. The car stopped in front of the Plaintiff''s shop, and. therefore. P.W. 5 stopped the lorry also near the shop. He has stated that all the persons in the lorry got down and went to the shop of the Plaintiff while he continued to sit in the lorry. After sometime certain bags were loaded into his lorry and he was asked to drive the lorry away from the place where it was standing. Defendants 4 and 6 along with some others again got into the lorry on its way back. He stopped the lorry for sometime near the court building where Defendant-4 got down from it. Thereafter, P.W. 5 has deposed that he was directed by Defendant-6 to take the loaded lorry to his house at Kanakamajalu and there all the bags were unloaded and taken to the house of Defendant-6. Thereafter he again brought back the lorry to Puttur in which Defendant-6 also traveled. The fact that P.W. 5 was present near the premises of the Plaintiff''s shop on 26-4-1965 and that he was driving the lorry in question is also spoken to by K.N. Mallya P.W. 6 and Manjunatha Kini P.W. 7.
P.W. 6 is an Advocate practicing at Puttur and he was the President of Puttur Bar Association and Chairman of Puttur Panchayat when he gave evidence, P.W. 6 has stated in his evidence that he came to the Plaintiff''s shop on 26-4-1965 at about 9-00 a.m. on being called by the Plaintiff to assist him in avoiding the seizure of the goods belonging to him pursuant to the warrant issued by the court. He has no doubt admitted that he was appearing for Srinivasa Kamath in the earlier execution proceedings, but that by itself would not in any way affect the veracity of the evidence of this witness. He stated in his deposition that the goods that were attached were taken away in the lorry which was being driven by D''Souza whom he knew for five to seven years. P.W. 7 Manjunath Kini who was doing transport business prior to 1965 has stated that R. D''Souza was driving the lorry in which the goods that were attached were taken. We shall revert to the evidence of these two witnesses again at a later stage. The presence of P.Ws. 6 and 7 at the Plaintiff''s shop on 26-4-1965 when the goods of the Plaintiff were seized is not disputed although regarding the time at which they came to the said place and what they said or did some controversy is there between the parties. Defendants 3 to 6 who have given evidence in this case, have all stated that they did not know how the thirty bags of areca that were seized were carried away from the Plaintiff''s shop. In their deposition they make it appear that immediately after the said goods were entrusted to the custody of Defendants 1 and 2 as sureties. they left the place and they did not know how the said goods were carried away by Defendants 1 and 2. Hence, there is no positive evidence on the side of the Defendants regarding the manner in which the goods were removed from the Plaintiff''s shop.
The have however tried to place some evidence before the court in the form of oral evidence of D.Ws. 12, 13 and 14 in their attempt to show that the evidence given by P.W. 5 which is corroborated by the evidence of the Plaintiff and P.Ws. 6 and 7 was not trustworthy. D.W. 12 is one G.A. Acharya who is a resident of Puttur. His evidence is that on 26-4-1965 at about 8-00 a.m. he met Defendant-6 at a place five or six miles from Sulya while he was coming in his car from Madikeri (Mercara) to Puttur. He has further deposed that Defendant-6 then asked him to stop the car by waving his hand and that on stopping the car Defendant-6 got into his car along with two bags, and that, Defendant-6 got down from the car at the shop of Srinivasa Kamath, Apparently this witness is referring to the shop of the Plaintiff. In cross-examination he has stated that he had been to Mercara to give instructions to his Lawyer and make recoveries from his customers. There is no documentary evidence to prove that he had gone to Mercara on the 25th and returned on the 26th of April 1965. It was suggested in the course of his cross-examination that he had stood as surety for D.W. 13 K.P. Shetty which he denied. The evidence of this witnesses appears to be a bit artificial. He does not say in his evidence that he met Defendant-6 at his residence on the morning of 26-4- 1965. He also does not state how Defendants-6 had carried the two bags which were alleged to contain areca according to Defendant-6 to the place Where he stopped the car.
D.W. 13 K.P. Shetty is the owner of the lorry MYX. 4938 driven by P.W. 5 on 25-4-1965. He has denied that P.W. 5 ever worked as his driver and that he had sent P.W. 5 on the night of 26-4-1965 to the house of Defendant-6. This witness admittedly is a transport contractor. He has admitted that he has maintained accounts and the trip sheets. It is in the evidence of P.W. 5, D.W. 13 and D.W. 14. who was the conductor of the lorry, that in respect of every lorry trip sheets had been maintained and in the case of lorry MYX 4938 also there were trip sheets. Those trip sheets and account books were not produced before the court. With regard to the accounts, he stated that he did not know Where his account books were and with regard to the trip sheets, this witness has stated that he could not say whether or not the trip sheets pertaining to the lorry in question had been destroyed or not. The Defendants did not summon the account books and the trip sheets and get them produced before court. The evidence of D.W. 14 Belliappa who acted as conductor of the lorry on 25-4-1965 and 26-4-1965 is vague. He supported in the course of his evidence the case of the Defendants, but in cross-examination he admitted that the could not say where the lorry MYX 4938 had gone on 25-4-1965 or 26-4-1965. He however denies having gone to the house of defendanit-6 on the night of 25-4-1965 and near the Plaintiff''s shop on 26-4-1965. If the evidence given by D.Ws. 12, 13 and 14 is considered in the light of the evidence of Defendant-6 (D.W. 11). (sic) do not find much difficulty in coming to the conclusion that what all D.Ws. 12, 13 and 14 had stated is not worthy of acceptance.
Defendant-6 has admitted that he was near the shop in question from 8.30 a.m. on 26-4-1965 until the attachment of the goods was completed. He has also admitted that he had signed the attachment list Exhibit P-111 along with Defendant-7. His evidence is that he had brought two bags of areca from his place on the morning of 26-4-1965 in order to sell them to Srinivasa Kamath the father of the Plaintiff and that he did sell the two bags to Srinivasa Kamath within about few minutes after he came. Within about ten minutes after he had sold the areca nut which had been brought by him, Defendant-3 came to the shop to execute the warrant. He has further stated that thirty bags which were seized on that day included the two bags which he had brought. In the written statement as well as in the oral evidence, Defendant-6 maintained that the shop in which the attachment took place belonged to Srinivasa Kamath and not to the Plaintiff, But after he was cross-examined at length, he had to admit that the shop belonged to the Plaintiff and not to Srinivasa Kamath. He has denied that he had met the Plaintiff in 1960-61 along with Defendant-4 requesting him to settle the amount due under the decree which had been obtained by Athri Rama Prabhu, D.W. 15.
We have not been shown any entry in the books maintained by the Plaintiff that Defendant-6 had sold two bags of areca to the owner of the shop in question, on that date. Defendant-6 also has not produced any receipt which would ordinarily be given when areca nut is sold. He has stated that no receipt was given to him. It may be mentioned here that in the attachment list Exhibit P-111, Defendant-6 has certified regarding the solvency of Defendant-1, assigned-decree-holder and Defendant-2 who undertook to act as surety for the attached goods which were entrusted to his custody. In para 9 of his written statement, Defendant-6 denied having made any statement regarding the solvency of Defendants 1 and 2 before Defendant-3. At that stage it was not the case of Defendant-6 that he had signed some documents at the time of the attachment, contents of which he did not know. In the course of his deposition, he has stated as follows:
I attested the security bond without reading it. I have not certified that the Defendant Nos. 1 and 2 were solvent enough. If that security bond reads that I have certified that Defendant Nos. 1 and 2 are solvent enough it is a wrong thing. I see the certified copy of the security bond which is the same. I have attested the original thereof. It is Exhibit P-111. Exhibit P-111 (a) is an incorrect statement. Nobody read out the security bond. As Defendant No. 3 asked me to attest it I attested it. I cannot say whether Exhibit P-111 (a) is a correct statement or not.
From the evidence adduced in this case, we are of the opinion that Defendant-6 did not have any transaction with Srinivasa Kamath on 26-4-1965 at the Plaintiff''s shop and that Defendant-6 has come out with this story only to make out that his presence at the Plaintiff''s shop on 26-4-1965 was accidental and not due to any design. His presence near the shop from 8.30 a.m. till the goods belonging to the Plaintiff were seized and his participation in the attachment proceedings taken along with, the other evidence in this case, shows that he had not gone on 26-4-1965 to the Plaintiff''s shop to sell areca belonging to him. This conclusion naturally is inconsistent with the evidence of D. W. 12 Acharya who has stated that two bags of areca were transported in his car by Defendant-6. We feel that the evidence of D.Ws. 12, 13 and 14 is not sufficient to outweigh, the positive evidence given by P.Ws. 5, 6 and 7 regarding the user of the lorry of D.W. 13 to carry the goods that were attached, of which P.W. 5 was the driver. When once we come to the conclusion that the evidence of P.W. 5 on the above question should be believed, it follows that the evidence of Defendant-4 who has been examined in this case as D.W. 2 and Defendant-6. that they did not travel in the lorry on that day in order to reach the Plaintiff''s shop and to go away from there and the evidence of Defendant-6 that P.W. 5 had not gone to his house at Kanakamajalu on the evening of 25-4-1965 and the attached goods were not taken to his house on 26-4-1965 become unworthy of belief.
We shall now proceed to consider the evidence regarding events that took place after Defendant-3 arrived at the shop of the Plaintiff on 26-4-1965. The Plaintiff has deposed that he was in the shop even before Defendants 3 to 7 went there. Manjunatha Kini, P.W. 7, who is the owner of a Typewriting Institute very near the Plaintiff''s shop has corroborated the above statement of the Plaintiff. Defendant-3 and Defendant-6 who were admittedly in the shop from the commencement of the proceedings which led to the seizure of Plaintiff''s goods have deliberately given an incorrect version regarding the arrival of the Plaintiff at the shop to suit their case that Srinivasa Kamath was the owner of the shop. They have stated that Srinivasa Kamath who was in the shop quietly handed over the goods for being attached. If that was the case, the presence of K.N. Mallya (P.W. 6). Hanumatha Bhat (P.W. 4). Manjunatha Kini (P.W. 7) and hundreds of others near the shop would be unexplainable. Their presence could only be compatible with the case of the Plaintiff that when the Defendants came to seize the goods, he offered resistance and immediately sent for K.N. Mallya to explain his case to Defendant-3.
K.N. Mallya has stated that he requested Defendant-3 not to seize the goods and if necessary to accept the sureties offered by the Plaintiff P.Ws. 4 and 7 who are both residents of Puttur, have deposed that they offered themselves as sureties. The Plaintiff has stated that he even offered cash security to avert the attachment of the goods. Defendant-3 no doubt denies all that is stated above. At one stage he states that no such offer was made until the goods were entrusted to the sureties, Defendants 1 and 2. Defendant-6 has supported the evidence of Defendant-3 on the above point. Defendants 3 and 6 cannot be believed for obvious reasons. The evidence of P.Ws. 1, 4, 6 and 7 appears to be quite natural and consistent with the case of the Plaintiff, (i) that he was the owner of the shop; (ii) that he was not liable under the decree in execution; (iii) that even though the decree was very nearly twelve years old, no attempt had been made to attach the goods in the shop where a large volume of business was being carried on as shown by Exhibits P-l to P-41 even though a number of execution petitions had been filed till then; and (iv) that on the very day the Plaintiff went to Mangalore and obtained an order to release the goods after depositing Rs. 5,000/- in cash as per Exhibit P-80.
In para 17 of the deposition, Defendant-3 has admitted that the Plaintiff might have come to the shop about half an hour after he went there. Even on that basis since the attachment was not over till about 10-00 a.m. we have to hold that the Plaintiff must have made all possible efforts permissible in law to prevent seizure of goods. In para 20 of the deposition, Defendant-3 has stated that even if security had been given he would not have stopped attachment of goods but in para 21 he states that if the Plaintiff after showing such things as account books to prove his ownership of the shop and offered to give security and if he had made claim to the goods, he might have left the goods with the Plaintiff after taking security. In para 2 he has stated that be asked Srinivasa Kamath to give security after the attachment and told him that after taking security he would handover the attached areca to the sureties.
These statements of Defendant-3 are mutually inconsistent. Defendant-3 has stated in para 3 of his deposition that when P.W. 6 Mallya asked him not to proceed with the attachment, he told him that the attached areca had already been handed over to the sureties and the attached list could not be cancelled, But that is inconsistent with the statement in his report that the attachment was effected in the presence of P.W. 6. The relevant part of the report is admitted as correct by Defendant-3 in Para 17 of his deposition. We are of the opinion that Defendant-3 had in spite of honest efforts on the part of the Plaintiff, seized the goods in excess of his authority and contrary to the provisions of Order XXI Rule 43 of the CPC and the relevant Civil Rules of Practice which are extracted below, which provide for entrustment of attached goods to the custody of decree-holder or judgment-debtor or any other person interested in the goods who is prepared to stand as surety or offer cash security with an undertaking to produce the goods whenever required by the court. Order XXI Rule 43 of the CPC reads as follows:
Where the property to be attached is moveable property, other than agricultural produce, in the possession of the judgment-debtor the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates and shall be responsible for the custody thereof:
Provided that when the property seized is subject to speedy and natural decay or when expenses of keeping it in custody are likely to exceed its value the attaching officer may sell it at once and
Provided also, that, when the property attached consists of livestock, or other articles which cannot conveniently be removed and the attaching officer does not act under the first proviso to this rule, he may at the instance of the judgment-debtor or of the decree-holder or any person claiming to be interested in such property leave it in the village or at place where it has been attached-
(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in the prescribed form with one or more sureties for its production when called for, or....
Rules 7 and 8 of the Rules for the custody of attached movable property and for the maintenance of attached livestock made under Order XXI, Rule 43, CPC framed by the Madras High Court and which were in force then at Puttur read as follows:
When the property attached consists of livestock, agricultural implements or other articles which cannot conveniently be moved, the officer making the attachment may, at the instance of the judgment-debtor or of the decree- holder or of any person claiming to be interested in such property, leave it in the village or place where it has been attached:
(a) in the charge, of the person at whose instance the property is retained in such village or place, provided such person enters into a bond in the form prescribed (vide Form No 15-A of Appx. E of the First Schedule to the Code) with one or more sufficient sureties for its production when called for; or
(b) in the charge of a peon, if a suitable place for its safe custody be provided and the wages of the peon, at the rate of 8 annas per diem for 15 days, be paid in advance.
Whenever attached property is kept in the village or place where it is attached the officer shall forthwith report the fact to the court, and shall with his report, forward an accurate list of the property seized so that the court may thereupon issue the order for sale if such order has not been already issued." There was no valid excuse for not entrusting the goods to the custody of P.Ws. 4 and 7 who offered themselves as sureties or to the Plaintiff who offered cash security. Defendant-3 instead of doing so, entrusted the goods to the custody of Defendants 1 and 2 who are stated to be impecunious.
At this stage we shall deal with the evidence regarding the conduct of Defendant-3. Defendant-3 stated both in his written statement and in his deposition that the shop belonged to Srinivasa Kamath. In para 1 of his deposition he stated that he had sold his own areca in that shop but later on he stated that the said areca belonged to his father with whom he was living But in para 8 of the deposition, he stated that he did not know who the owner of the shop was. In para 11 he has stated that he had not bothered himself to know what the plaint contained. Regarding his own duties he has stated in para 12 that even though he knows that the decree-holder and surety offered by the decree-holder are not solvent, it was his practice to hand-over the goods to the decree-holder and the surety. It is not his case that the goods that were attached were even pointed out by the decree-holder. He has not stated so in Exhibit P-94 his reply notice but his case has been that the goods were delivered by the judgment-debtor himself which cannot be believed. The report regarding attachment was filed by Defendant-3 only on the next day. The evidence of the Plaintiff and his witnesses is that no proceedings were written at the place of attachment, which appears to be probable having regard to the circumstances of this case. A reading of the written statement and deposition leaves one sad for the arm of law has been used in this case to carry out an illegal object.
We may at this stage dispose of the contention of Defendant-3 based on the provisions of Judicial Officers'' Protection Act. It is no doubt true that if as already observed by us, the warrant had been executed in accordance with law, Defendant-3 could have claimed the protection of the Act. In the instant case, the warrant itself did not mention the goods that had to be attached or their situation. There is no believable evidence that Defendant-1 pointed out the goods that were attached. Defendant-1 has not been examined. It is found by us that the shop and the goods belonged to the Plaintiff who was not liable under the decree. We have also held that the report of Defendant-3 regarding the proceedings dated 23-4-1965 was not true. Defendant-3 has in violation of Order XXI Rule 43 of the Code and the relevant Civil Rules of Practice seized the goods even though the Plaintiff offered sureties and also cash security. The specific case put forward by Defendant 3 that the goods belonged to Srinivasa Kamath is disbelieved by us. All these circumstances establish that Defendant-3 had deliberately misused his office and the warrant issued to him to cause loss to the Plaintiff in collusion with others with a mala fide intention and that he had done so in excess of his authority. Defendant-3 is not therefore, entitled to the protection of the Judicial Officers'' Protection Act.
In so far as Defendant-4 is concerned we have the evidence of the Plaintiff and P.W. 6 regarding the interest he had in recovering the money. Defendant-4 was admittedly present at the shop. P.W. 5 has stated that he had brought him in his lorry with Defendant 6 and Defendant-4 went in the lorry loaded with the attached goods. P.W. 6 has stated that Defendant-4 was assisting Defendant-3 in carrying out attachment. We do not believe the case of Defendant-4 that he came there after attachment was all over. The case of the Plaintiff is that Defendant-4 had caused the assignment of the decree in favour of Defendant-1 nominally with the object of causing loss to the Plaintiff. We feel that the evidence is sufficient to hold that Defendant-4 acted in concert with Defendants 1, 2, 3 and 6 in causing loss to the Plaintiff.
The case against Defendant-6 is equally well founded. The Plaintiff has stated about Defendant-6 approaching him regarding the settlement of decretal amount in 1960-61. P.W. 5 R. D''Souza has stated that Defendant-6 came in the lorry .to the place of attachment and went back in it with the attached goods. He also stated that the said goods, were deposited in the house of Defendant-6. Defendant-6 has certified that Defendants 1 and 2 were solvent even though they were not so. From Exhibit P-111 it is seen that Defendant-2 also comes from Kanakamajalu where Defendant-6 is residing. The presence of Defendant-2 at the place of attachment is not explained by anybody. The Plaintiff has deposed in para 18 of his deposition that Defendant-2 was always seen with Defendant-6 at Puttur. Defendant-6 has not denied the said fact. We have held that the alternative case set up by him explaining his presence at the shop is not true. Hence, we hold that he is also one of the joint tortfeasors answerable to the Plaintiff''s claim.
With regard to Defendants 5 and 7, however, we do not feel that the evidence is sufficient to make them liable as joint tortfeasors . The only evidence against Defendants 5 and 7 is that they were present at the time of attachment. Defendant-7 has no doubt also certified regarding the solvency of Defendants 1 and 2. P.W. 5 does not say that Defendants 5 and 7 traveled in the lorry. In the circumstances of this case, they cannot be considered as having acted in concert with others in committing the tort with a common object. Hence, we hold that the claim against them is not sustainable. But the cumulative effect of the evidence in this case makes us believe that Defendants 1 to 4 and 6 have with a common design and purpose carried out illegal seizure of goods from the Plaintiff. The fact that the goods were later on seized and taken away pursuant to a warrant of the Court at Kasargod in Kerala State in a case with which the Plaintiff was unconcerned is no defense. Defendant-2 as a surety could not have removed the attached goods outside the jurisdiction of the Court at Puttur. The case of Defendants 1 and 2 that they brought the goods on 19-6-1965 to the Grama Chavdi at Puttur for delivering the goods to the Amin is not proved. All attempts made to get Defendants 1 and 2 through the process of the court were unsuccessful. We feel that Defendants 1 to 4 and 6 are all jointly and severally liable as joint tortfeasors to compensate Plaintiff.
The Court below has made a decree for Rs. 14,400/- made up of Rs. 11,400/- being the value of the goods 2,000/- being damages for loss of reputation and mental agony, and Rs. 1,000/- towards loss of profit. It is contended that the Plaintiff is not entitled to get Rs. 2.000/- as damages for mental agony and loss of reputation. On behalf of the Plaintiff it is urged that the said sum could be awarded as general damages in view of the aggravated nature of tort committed in this case. We do not express any opinion on the legal position whether in such a case damages could be awarded for mental agony or loss of reputation, for we feel that damages of Rs. 1,0001- which is awarded by the court below in addition to the value of the goods and which is, not questioned before us is sufficient in the circumstances of the case to meet the ends of justice. We extend the benefit of the above finding also to Defendants 1 and 2 who have not appealed under Order 41 Rule 33 of the Code of Civil Procedure.
In the result, in substitution of the decree of the court below we pass a decree for Rs. 12,400/- only jointly and severally against Defendants 1 to 4 and 6, with current interest thereon at 6 per cent per annum from the date of suit till the date of payment and proportionate costs of the trial court. We dismiss the suit against Defendants 5 and 7 and direct them to bear their own costs in both the courts.
With the above modification, both these appeals are dismissed. Plaintiff shall get proportionate costs from Defendants 3 and 5 in R.F.A. No. 26 of 1969 and from Defendant-6 in R.F.A. No. 27 of 1969.
The appeals are accordingly disposed of.