Madan Lall vs Lakshmi Narain

Manohar Lall, J.—This is an appeal by the defendant against the appellate decree of the learned Subordinate Judge of Monghyr affirming the decision of the Munsif decreeing the suit of the plaintiff for damages for his malicious arrest in execution of an ex parte decree passed by the Small Cause Court of the Second Munsif of Monghyr under circumstances which are somewhat peculiar. The plaintiff in the Small Cause Court suit instituted his suit on the foot of a handnote which was executed jointly by the father of the respondent and one Basiruddin. I was informed that Basiruddin was the principal defendant who had taken the money, but the father had stood as his surety and became liable as a joint executant on the handnote. The suit which was instituted by the appellant was decreed by the Small Cause Court Judge ex parte, as stated already. Thereafter the appellant took out execution of the ex parte decree by asking for warrant of arrest against the father and later on against the son, that is to say, the respondent. When the respondent was arrested while in service, he was produced before the Munsif in the execution department and on hearing his objection he was released. The order of release is not before me but it is common ground that the learned Munsif in the execution department came to the conclusion that the decree-holder had no right to arrest the respondent in execution of this decree which was interpreted as negativing any personal liability on him. The respondent then instituted the present suit for recovery of damages for malicious arrest asking for a decree for a total sum of Rs. 135, namely Rs. 125, as damages, and costs and Rs. 10 as costs incurred in getting his release and some other incidental expenses.

The principal respondent''s attack on the facts was that the decree in the Small Cause Court suit was obtained behind his back fraudulently and without service of notice to him. He sought to make out that in this way he was prevented from putting forward his defence before the Small Cause Court. But the Courts below have concurrently come to the conclusion that the allegation of the respondent that summons was not served on him was false. Therefore it must be taken as established that the respondent with a notice of claim against him deliberately absented himself from contesting the action and allowed the decree to be passed against him. The decree of the Small Cause Court is still in existence and has never been sought to be set aside.

The only question which really arises for determination in this ease is whether the conclusions of the lower Courts to the effect that the appellant''s action in getting the respondent arrested was without reasonable and probable cause and malicious can be supported in law. Before dealing with this matter I ought to deal with a preliminary objection which was raised by Mr. K.N. Lall appearing on behalf of the respondent. His objection was that the appeal was not properly valued because it was valued at Rs. 125 only whereas the decree actually prepared by the trial Court (which was affirmed by the Appellate Court) shows that the decree was passed for a sum of Rs. 135. I asked the parties to show me any finding of fact of either of the Courts below by which they have given reasons for awarding the plaintiff a sum larger than Rs. 125.

I am unable to see such a finding in any of the two judgments. The memorandum of appeal was valued at Es. 125 but the prayer which is attached in the end of the memorandum of appeal is to this effect: "It is prayed that the decree appealed from be set aside and the suit dismissed." It is clear therefore that the appellant is aggrieved not only from a portion of the decree but from the whole of the decree which has been passed and the objection of the respondent can only be directed to the question of court-fees payable on the memorandum of appeal to this Court. But, this is not a matter which arises at all between the defendant and the Crown and in this case I do not think that any court-fee has escaped levying because the amount of court-fee will be the same whether the appeal is valued at Rs. 125 or at Rs. 135. I therefore overrule this objection.

It was then strenuously argued by Mr. K.N. Lall that the findings of the Courts below as to the absence of reasonable and probable cause and to the existence of malice are conclusions of fact with which this Court has no jurisdiction to interfere in a second appeal. It is enough in this connexion to refer to the case in Naik Pandey v. Bidya Pandey A.I.R (1916) Pat. 174 where some authorities are quoted at p. 152 in support of the view which I think is correct that this Court has jurisdiction in second appeal. To the same effect is the leading case in Raj Chunder Roy v. Shama Soondari Debi (1879) 4 Cal. 583 which I refer because it will be of use in deciding the other points in controversy. As I have said before, the real question in this case is whether under the circumstances which have been established, namely that the decree still exists and has never been set aside and that the defence of the respondent that he had no notice of the suit having been found to be false, it can be held that the present suit is maintainable and should be decreed.

The Division Bench of the Calcutta High Court decided in the case just referred to that in order to succeed in an action for malicious arrest the plaintiff has to show in the first instance that the original civil action out of which the alleged injury arose has been decided in his favour and secondly that the defendant maliciously and without reasonable and probable cause procured the respondent to be arrested and then he, of course, has to establish the injury and the damage as a result of his arrest. Now, in this case, as I have said above, the original civil action out of which this suit for damage has arisen has not been decided in his favour as the decree still remains against him. Again the decree as it stands was a decree jointly against all the defendants. The decree is silent as to whether it should be executed only against the property or assets of the plaintiff. The appellant sought to give evidence of a pleader whom he examined as his first witness in the defence in order to show that the pleader had advised him to apply for the issue of a warrant against the respondent on examining the terms of the decree. The pleader stated in his examination-in-chief to this effect but in cross-examination he denied that he advised his client to get a warrant of arrest issued. I have no doubt whatsoever that in this case the evidence of the pleader ought to have been accepted because it appears to me that the pleader under the stress of cross-examination was averse to take responsibility on him, but nonetheless it is not a matter (being a question of fact and the weight to be attached to the credibility of a witness) in which I can interfere in second appeal.

I now refer to the service of notice on the plaintiff respondent through one Jadunandan. The learned Judge held that it was a remarkable thing that notice in the original suit as well as the notice under Order 21, Rule 37, Civil P.C., both should be entrusted by the Nazir to Jadunandan, a civil court peon, against whom the plaintiff had filed certain complaint (Ex. 7-A) and with whom he is on bad terms. The learned Judge says that it is curious that this Jadunandan was entrusted by the Nazir to serve the summons on the plaintiff in the Small Cause Court suit; but he omitted to notice that notwithstanding the proved enmity the summons was actually served on the plaintiff in the Small Cause Court suit. If the learned Judge had kept that finding in view he would have seen that his subsequent reasoning that the Nazir had entrusted the warrant of arrest to this Jadunandan was no ground whatsoever for believing that this man Jadunandan was a party to a deliberate avoidance of the service on the respondent.

Again I find nothing whatsoever on the record to show that it was at the instance of the appellant that the Nazir entrusted the process to Jadunandan. The Nazir was not examined as a witness. I therefore do not see any reason whatsoever for coming to the conclusion that the arrest of the respondent was effected in a surreptitious way. All that can be said is that the Court has not been able to come to the conclusion that the arrest was with notice to the plaintiff. But there is another circumstance upon which the learned Judge has relied and that is that the appellant ought to have proceeded against the judgment-debtor Basiruddin and not against the respondent. The case in Raj Chunder Roy v. Shama Soondari Debi (1879) 4 Cal. 583 is a complete answer to this contention. In that case a pardanashin lady was arrested in execution of a decree which her enemy had obtained against her and it was argued on her behalf, as the plaintiff in the action, that owing to the enmity existing between the parties the decree-holder with full knowledge that the lady was possessed of sufficient property instead of executing the decree against the property proceeded to arrest her, and so it was argued it should be held that he did so maliciously and without reasonable and probable cause. The learned Judges of the Calcutta High Court held that the possession of property by the judgment-debtor did not make it wrongful, in the creditor to arrest his debtor in execution of a decree because under the CPC an option is given to the creditor of enforcing the decree either against the person or the property of the debtor, and the fact that the decree is an ex parte decree does not make any difference whatsoever. The learned Judges further held that it has been long ago, and over and over again, ruled that in suits like the present one where the plaintiff has, to show an absence of probable cause, existence of malice alone is insufficient to entitle the plaintiff to a verdict, and they referred to a number of English cases on the point.

In my opinion the facts of this Calcutta case apply with equal vigour to the facts of the present case; here also the only thing which I find is that the appellant having obtained a perfectly good decree against the respondent executed it in a manner which he thought that the law allowed. He did not snatch a decree against the defendant-respondent because a notice was served upon him in the Small Cause Court action. He consulted his pleader and whether we accept the evidence of the pleader or not, it is obvious that the pleader must have known that the warrant was being asked to be issued for the arrest of the respondent. The appellant was entitled to proceed against any of his judgment-debtors. In these circumstances I do not find anything in law to justify the conclusion that the arrest of the respondent was malicious and without reasonable and probable cause.

I now refer to two or three authorities which have been cited by the learned advocate for the respondent. He strongly relies upon the case in Velji Bhimsey & Co. v. Bachoo Bhaidas A.I.R (1925) Bom. 118. It is a Full Bench case of the Bombay High Court. But, in that case, the learned Judges came to the conclusion that the decree, which was executed, directed that in default of payment of the decretal amount by the defendants the amount was to be levied by seizure and sale of the property of the deceased that would come to their hands as his heirs and legal representatives, and the learned Judges pointed out at page 695 that the plaintiff in the Small Cause Court suit fully knew that they were not entitled under that decree to apply for the arrest of the defendants and they ought to have known that the order of the executing Court merely enabled them to proceed with the execution of the decree, and as the decree only entitled them to execute it against the property of the deceased in the hands of the defendants, they must be taken to have been aware, when they applied for the arrest of defendant 1, that such conduct was not justified. Now the present case is wholly of a different character. Here the decree, as I have stated above, was entirely silent as to the manner of execution and therefore there is no evidence in law to support the conclusion that the appellant knew or ought to have known that his conduct in applying for the arrest of his judgment-debtor was not justified.

Reliance was then placed upon the decision of this Court in Jwala Presad v. Bhuda Ram A.I.R (1931) Pat. 328 In that case a decree was passed against an infant who at the date of the suit was represented by a guardian ad litem and when the decree was being executed against him on his attaining majority he took the objection as an adult that it should not be executed against him. If I may say so with respect, this objection had to be allowed because the decree was not against the adult but was against him as an infant through a guardian ad litem. In such circumstances, the decree itself indicated on the face of it that it was against the defendant represented by a guardian ad litem. Therefore it was correctly held that such a decree both in fact and law could not be executed by the arrest of the person who was an infant defendant at the date of the decree. The two cases of this Court, namely Bissessor Ram v. Ramakant Dubey A.I.R (1934) Pat. 187 and Sukdeo Prasad Narayan Singh v. Madhusudan Prasad Narayan Singh A.I.R (1931) Pat. 177, lay down the proposition that it is open to the judgment-debtor against whom a decree has been passed along with the father in respect of the father''s debt to take objection in the execution department that he should not be made personally liable for the decree but only liable to the extent of the assets which would come into his possession. It is no doubt that the principles of these authorities induced the learned Munsif in the execution case against the respondent to order his release. But these authorities are no justification for holding that if a decree-holder tries to execute his decree against his judgment-debtor where the decree is silent as to the mode of execution he must be held in law to have been actuated by unreasonable and improper cause in arresting his judgment-debtor. An unreported case of this Court (M.A. No. 88 of 1932) decided by Wort J. sitting with Fazl Ali J. dealt with a similar situation in the execution department and it was held that

it was obvious that if the decree is not ambiguous or equivocal it is impossible for this Court, as it was impossible for the Subordinate Judge, to go behind the decree and to ascertain by that means what the liability of defendant 2 was. In this case as I have indicated there were a number of defendants and amongst them the present respondent and some infants. The Subordinate Judge in his decree stated: ''The suit is decreed on contest against both sets of defendants, etc.'' At the end of the decree there is this statement, ''the minor defendant will not be personally liable.'' The decree could not be clearer if the learned Judge had said that the other defendants are personally liable. In my judgment, the learned Judge by differentiating the liability of the minor defendant from the others quite clearly showed that the defendants other than the minor defendant were liable personally.

Now without attempting to reconcile the decision of this last cited case with the earlier Patna decisions referred to by Mr. K.N. Lall it is sufficient for the purposes of this case to hold that it is open to a litigant or a lawyer to take the view that where the decree is silent he may reasonably attempt to execute it by proceeding against the person or the personal property of the judgment-debtor and if he does so however maliciously he cannot be said to be actuated by any unreasonable or improper conduct. I may usefully draw attention to the provisions of Section 95, Civil P.C., which is especially inserted in the Code in order to give legislative approval to the procedure that where in any suit in which an arrest or attachment has been effected or a temporary injunction granted before the suit is decided the defendant may apply to the Court, and the Court may award against the plaintiff by its order such amount not exceeding Rs. 1000 as a reasonable compensation to the defendant for the expense or injury caused to him. It will be noticed that there is no provision in the Code for a situation resulting from the execution of decrees against the person or property of the judgment-debtor for the obvious reason that the terms of the decree under execution itself must decide the rights of the parties.

For these reasons the appeal is allowed and the judgment and the decree of the lower Appellate Court is set aside and the suit of the plaintiff is dismissed with costs throughout. Leave to appeal is refused.