Mussamat Subjan Bibi and Others vs Sheikh Sariatulla

Norman, J.—The plaint alleges that the defendant, in execution of a decree in the Sadder Ameen''s Court, against one Khezar Buksh, on the 16th of June 1866, caused certain cattle belonging to the plaintiffs to be attached; that the plaintiffs claimed the cattle, u/s 216; and that their claim was allowed and that the cattle were released, and all except three bullocks which had died, were restored to the plaintiffs on the 28th of September 1866. The plaint goes on to state that as the cattle were attached at the time of cultivation, the plaintiffs'' jote remained uncultivated for the year. The plaintiffs claimed damages, rupees 734, as the value of the crops which might have been raised, and rupees 61, as the value of the three bullocks which died. The plaintiffs proved that the lands remained uncultivated during the year, and gave evidence as to the value of the crop which might have been raised. The Munsiff dismissed the suit. He found that the plaintiffs were not under any necessity to leave the land uncultivated during the attachment; that the plaintiffs might have cultivated the land by hiring other bullocks, or settled it with somebody; and as to the bullocks said to have died, he did not believe the evidence that thirteen bullocks were attached.

The Principal Sudder Ameen reversed this decision, on the ground that though the damages claimed by the plaintiffs were too remote, that was no ground for dismissing the suit altogether. He awarded, in respect of the detention of the cattle for three months and 13 days, the sum of rupees 57-13, being the sum which he considered would have been the costs to the plaintiff of hiring other cattle. He disallowed the claim for the value of the bullocks which died, on the ground that there was nothing to show that they had died from any neglect, as he considered it had been proved that they were properly fed while kept under attachment. From that decision the plaintiff has appealed.

It has been contended before us, in special appeal, on the part of the plaintiffs; first that the damages claimed in respect of the Aughani crop ought to have been allowed; secondly, that the Principal Sadder Ameen ought to have awarded to the plaintiffs the full value of the bullocks which died while under attachment. The defendant, on cross appeal, objected that he was not liable at all for the seizure of the cattle.

This case raises very important questions as to the liability of a decree-holder for the wrongful attachment of the goods of a stranger in execution of a decree. One principal point has been touched on, and is supposed to have been decided by the Chief Justice in two cases to which I shall hereafter call attention. In considering this case, it must be observed that it is a settled rule of law that every person who directs, orders, or procures the commission of a trespass, is liable as a wrong-doer and trespasser. If a decree-holder having obtained a warrant authorizing the attachment of the goods of A, points out to the officer of the Court, and causes him to attach and remove goods belonging to B, as the goods of A, the decree-holder is a wrong doer, and cannot in any way justify his proceedings under the warrant. In causing B''s goods to be attached and taken out of his possession he procures a trespass to be done to B. If a man for his own profit and advantage wrongfully, or without any warrant in law, trespasses on the land of another, takes away his goods, or procures his goods to be seized and taken out of his possession, be is responsible, even though he acts innocently, or mistakenly. A party to a suit is liable, if by his order the officer takes the goods of the wrong person, a stranger, in execution; and in like manner he is responsible, if his attorney or agent, in taking a step necessary to enable his client to get the fruits of the decree, inadvertently or ignorantly cause the person or property of a stranger to be seized by the officer of the Court. The cases of Jarmain v. Hooper 6 M. & G. 827 and Walli v. McConnel 13 Q.B. 903 are good illustrations of the rule to which I refer.

Under a system where any remedy against the officer executing the process of the Court would be utterly nugatory, it appears to me that it is peculiarly necessary not to relax the rule as to the liability of the decree-holder for his own acts, or those of his agents, in causing the decree to be executed, because if the decree-holder is not to be responsible, wrongs done to third persons under colour of the process of the Court would be wholly without remedy. If therefore the defendant directed the officer of the Court to seize the plaintiffs'' goods, under a warrant of attachment empowering the officer to seize the property of Khezar Buksh, the judgment-debtor, the defendant would in our opinion be clearly liable.

We do not know what was the form of the warrant under which the plaintiffs'' goods were seized. But we think that, in the present case, the defendant is equally liable, even if the goods were seized under a warrant issued on an application for an attachment, accompanied by an inventory or list of the property to be attached. Whether there is an inventory or not, the usual course is for the Court simply to order, on the application of the decree-holder, either that the property of the debtor should be attached generally or that such particular property should be attached as the applicant has indicated in the Hat accompanying the tabular statement. Neither the 214th section of Act VIII of 1859, nor the 15th section of Act XXIII of 1861, appears to contemplate any enquiry before the Court from which the execution is to issue, whether the property to be seized is that of the judgment-debtor or not. Nor, as a matter of fact, does any such enquiry take place. In ordinary cases, there is no adjudication which makes the seizure of the particular goods the act of the Court. For instance, the warrant would not authorize the taking of particular cattle identifying them by sex, age and particular marks, without reference to the question of ownership, but would simply empower the officer to seize the cattle of the debtor; which in this case was the cattle of Khezar Buksh.

It would paralyze the action of the Court, if Judges were to feel that in issuing warrants of attachment they might be authorizing the commission of wrongs for which there would be no remedy. If that is the law, I can only say that I believe few Judges would be willing to issue orders for attachment without such full enquiry as might often defeat the diligence of a decree-holder desirous of executing his decree. Of course, if after having all the facts as to the right of a defendant to particular moveables brought before it, the Court after adjudicating on the materials before it were to order the attachment of specified property, or decide as to the right to such attachment, the order would be the act of the Court, and if the decree-holder had acted bona fide in bringing the facts fully before the Court, he would not be liable.

The case of Joykali Dasi v. Chand Malla 9 W.R. 133 falls within this rule; there the defendant was attempting to execute a decree barred by limitation. The Judge, by an order dated the 21st September, directed that the property should remain under attachment pending appeal, after a decision by the Principal Sudder Ameen that the right to execute the decree was barred. The defendant had resorted to the Court to seek the enforcement of a supposed right. The order made on his application was, no doubt, improper, and its consequences were most mischievous; but it was a judicial act of the Court. Under these circumstances, it was held that no action would lie against the defendant for obtaining the order without proof that he had acted fraudulently or misrepresented or suppressed the facts in making application to the Judge.

In the case of Lock v. Ashton 12 Q.B. 871, the defendant gave the plaintiff into custody on a charge of felony, and had him taken to a police office. The Magistrate remanded the plaintiff. On a subsequent examination, the plaintiff was discharged, it having been discovered that the charge was made under a mistake. It was held that the defendant was not liable in damages for the detention of the plaintiff under the remand, such detention being the independent judicial act of the Magistrate. The case is a good illustration of the distinction between the liability of a man for his own acts, and his responsibility for those of a Court which he sets in motion. Coleridge, J., said, "suppose the defendant took the plaintiff to the police office on a day when he knew there would be remind. It was answered, that would be evidence in an action for malicious prosecution."

In the present case there was no issue whether the defendant directed or authorized the seizure of the plaintiffs'' cattle. But the plaint alleges that the defendant, in execution of his decree against Khezar Buksh, distained the plaintiffs'' cattle, and brought them into Court, and there was some evidence to that effect. The defendant, by his written statement, did not deny the allegation that he had distained the plaintiffs'' cattle in any way. He did not say "I had nothing to do with the seizure. The Officer of the Court, in the course of his duty in execution of the attachment, seized them. I gave no particular direction on the subject, and am therefore not responsible."

The objection that no direct issue on the point was raised has not been taken by appeal, or cross appeal, either in the Court below or before us; and I therefore think we must take it on this record, as admitted or not denied, that the defendant by himself or his agents, either directed or authorized the seizure of the cattle of the plaintiffs. Then comes the question, what damages are the plaintiffs entitled to recover. There is no doubt that the act of the defendant in attaching the plaintiffs'' plough and bullocks at the season of rice cultivation must have occasioned serious loss and inconvenience to the plaintiffs. The Judge has allowed that which could have been the costs of hiring other cattle. This is probably by no means an adequate compensation for the injury actually sustained by him, which seems in effect to have been the entire loss of their main rice crop for the year.

But the plaintiffs have not proved, as they should have done, that this loss was the necessary and unavoidable cod sequence of the wrongful acts of the defendant; and therefore we think that the defendant could not properly be made responsible for a loss, which for all that appears may to a great extent have been occasioned by the plaintiffs'' own want of prudence or energy.

There is no doubt that it must be a very serious thing to ryots to have their cattle seized at the time of cultivation. The Munsiff ''finds that the plaintiffs were not under any necessity to keep the land uncultivated, and that they unnecessarily allowed the land to remain waste. On the evidence, he seems to me to have been a little hasty in drawing that conclusion without sufficient enquiry.

It seems to us that damages for the detention of the cattle, until they are released from attachment by the Court, were properly allowable. The Sudder Ameen in admitting a claim u/s 246 does not make any order authorizing the detention of the goods claimed. The continued detention is simply and solely the consequence of the seizure under the warrant of attachment. The case is analogous to that of Edgell v. Francis 1 M. & G. 226, where the defendant improperly gave the plaintiff in custody on a charge of felony. Tindal, C.J., said, he was responsible for all that was done by the officer in the ordinary discharge of his duty. Then as to the bullocks which died while under attachment, there is nothing to show that their death was in any way directly attributable to the act of the defendant in causing them to be seized and detained. It is not suggested that they had been overdriven, kept in an improper place, or reduced to an unhealthy condition by bad management or neglect. If we look at the defendant as a mere trespasser, who wrongfully took the plaintiffs'' cattle, the plaintiffs would be entitled to a decree for a return of the cattle or their value, and if for any reason whatever be could not return the cattle, be would be obliged to pay their value.

There is nothing to show when the three bullocks died. But we think that on the Judge''s statement we must infer that they died after the plaintiffs'' claim had been admitted u/s 246. At that time the bullocks were in the custody of an officer of the Court The plaintiffs might have obtained an order u/s 92, providing for their safe custody pending the decision of the claim; perhaps, on giving security, might have themselves been appointed managers and allowed to use the cattle. As no such application seems to have been made, the custody of the bailiffs of the Court must be taken to have been that of persons to whom the cattle were entrusted for safe keeping, pending the decision of the claim, either by consent of the parties or the act of the Court. I think the defendants could not be made responsible for any damage to the cattle not shown to have been occasioned by negligence or improper conduct on the part of the bailiffs, while the cattle remained in their custody after the claim had been admitted. Indeed, I am not sure that the defendant would have been liable for the acts of the bailiffs after such an order, even if the bailiffs had been guilty of negligence. See the case of Walker v. Olding 32 L.J. Ex. 142, as to the liability of the execution creditor for loss occasioned by a sale of goods seized under an inter-pleader order.

On these grounds, I think that the appeal must be dismissed.

I may observe that there is no real conflict between our decision and that of Rajbullub Gope v. Issan Chunder Hujrah 7 W.R. 355.

In that case the judgment-debtor owned a moiety of the bollocks, and therefore in causing them to be attached as the property of the debtor, the defendant did not commit any trespass. He had a clear right to attach and sell the interest of the debtor in the bullocks. The only question was whether the attachment should have been u/s 233 or 234.

Jackson, J.

I concur generally in the judgment which my learned colleague has passed. The lower appellate Court seems to have taken a very proper view of the case. The damages, which the plaintiffs have demanded are such as could hardly be given even if the attachment of the plaintiffs'' cattle had been brought about maliciously. But there is no allegation of malice in the plaint. The attachment was a wrongful act, although it may have been made bona fide. The defendant has not attempted in any way to justify it. He has produced no evidence whatever to show the circumstances under which he made the attachment. His cross appeal cannot therefore be entertained. The plaintiffs have not shown in any way the circumstances which led to the death of three of their bullocks; and without some evidence upon that point, I am not prepared to say that they are entitled to any decree for the value of them. The Courts below have found, as a question of fact, that the plaintiffs were not prevented from cultivating their lands by the seizure of their bullocks, but that they have of their own accord and without any necessity allowed their land to lie fallow. The Courts have, accordingly, dismissed the plaintiffs'' suit for the value of the crops which they alleged they might have obtained. But the Court has decreed a sum sufficient to cover what would have been plaintiffs'' expenses for hiring bullocks to cultivate their lands. I think this was a very proper decree. I would dismiss the appeal and cross appeal. Each party must bear his own costs in this Court.