In Re: Ditta Harakman Sing

Sir Barnes Peacock, Kt., C.J.—It appears to me that the Court cannot, on the application of the plaintiff, continue the attachment pending the decision of the appeal to Her Majesty in Council, or call upon the respondent to give security before being allowed to remove it. Section 81 of the CPC authorises the Court, in cases where the defendant is about to dispose of his property, for the purpose of delaying the execution of any decree which may be passed against him, or with that object to remove the property out of the jurisdiction of the Court when the suit is pending, to call upon the defendant to furnish sufficient security to fulfill any decree which may be passed against him in the suit: and it is only upon the defendant''s failing to give that security that the Court can order his property to be attached. Now the security to be given is that he will fulfill the decree which may be passed in the suit. The words "in the suit" must mean in the suit to which Act VIII of 1859 relates, that is to say a suit within the meaning of section 1 of that Act, or in other words a suit over which the Civil Courts in this country have cognizance. The Court is not authorised to call upon a defendant, who has got a decree in his favour in this country, to give security to fulfill any decree which may be passed against him by Her Majesty in Council.

When an attachment issues against a defendant''s property, the Court is bound, u/s 87, to remove that attachment on the defendant''s furnishing security as "above required" (that is to fulfill the decree of the Court), together with security for the costs of the attachment. After the plaintiff''s suit has been dismissed finally by the Court of the highest jurisdiction in this country, he cannot require the defendant to give security to fulfill the decree which has been given in his favor, or any decree which may be given against him on appeal to Her Majesty in Council.

It would be unjust to call on the defendant to give security when the decree has been passed in his favour, and the plaintiff''s suit has been dismissed.

Further, if the defendant having had his property attached before decree offer to give the requisite security, the attachment must be removed. When the Court pronounces a decree in favour of a defendant, the Court must assume its own decision to be correct. Then why should the Court call upon the defendant to give security to the plaintiff when the Court has decided that the plaintiff is not entitled to any thing. The Court could not allow the plaintiff to seize the defendant''s property in execution when the plaintiff has failed to obtain a decree. When a plaintiff obtains a decree, the Court could not allow him to execute it, without security, pending an appeal to her Majesty in Council.

But if the Court after giving a decree in the defendant''s favour, and dismissing the suit of the plaintiff, can order plaintiff to have an attachment against the defendant''s property, the plaintiff is better off, and the defendant is almost in a worse position than if the plaintiff had got a decree against him.

If plaintiff got a decree against the defendant, he could not attach his property without giving a security; whereas if the order in this case can be made, the plaintiff, although he has failed in his suit, may keep the defendant''s property under attachment without giving any security at all. That would be a most anomalous state of affairs, and under these circumstances. I think that the judgment of Mr. Justice Jackson is correct; and that the Court has no power to continue the attachment, or to call upon the defendant to give security before he is allowed to remove the attachment.

It is true that the words of Act VIII of 1859 are that the attachment shall continue until the further orders of the Court. We are not called on to say whether when the plaintiff''s suit is dismissed, any further order of the Court is necessary to enable the defendant to be relieved from the attachment; but if such an order is necessary, it appears to me that the defendant is entitled to it under the spirit of section 87 of that Act. The Rule is discharged with costs.