The defendant is not bound to prove special damages in an application under S.95 C. P. C., and the fact that the order of attachment was made absolute does not preclude the defendant from taking proceedings under S.95.

1. The appeal arises out of proceedings instituted by the defendant in O. S.181/1123, District Court, Anjikaimal for compensation under S.95, C. P. C. There is no controversy about the facts leading up to that application. The appellant before us was the plaintiff in the said suit and the respondent herein was the defendant therein. The suit itself was for recovery of a sum of Rs. 10,000 from the appellant. After filing the said suit, the plaintiff filed M. P. 1860 of 1123 and asked for attachment before judgment of the defendant's properties under Order XXXVIII R.S, C. P. C. The allegations made in the petition for attachment before judgment were that the defendant is heavily involved and that he is trying to alienate the properties to defeat and delay the plaintiff's claim. An order of interim attachment was made on the same date and notice was issued to the defendant. He filed on 29-12-1123 M. P. 2100/1123 for raising the order of attachment. He has stated therein that the allegations mentioned in the affidavit for attachment before judgment were all false. He also emphatically denied the allegation that he had any intention of disposing of the whole or any part of his properties with intent to obstruct or delay the claims of the plaintiff. He also disputed his liability to the plaintiff.

2. Both these applications were considered together and on 27-2-1124, the interim order of attachment was made absolute. The suit itself was decreed on 31-3-1953 only to the extent of about Rs. 600 as against the claim of the plaintiff for about Rs. 10,000. The defendant filed M. P. 1446/53 on 27-7-53 for withdrawing the order of attachment under Order XXXVIII R.9 on the ground that the suit itself has been substantially dismissed. On 28-7-1953, the order of attachment was withdrawn by the court; but the plaintiff filed on 1-9-1953 M.P.1753/53 for reviewing the order withdrawing the attachment. Oh 11-11-1954, the said application was dismissed.

3. The plaintiff filed an appeal against the decree in the suit and even in the appellate court, the plaintiff again sought to attach these properties. The defendant gave an undertaking not to alienate some items and on that undertaking, the plaintiff's application was dismissed. The appellate court ultimately confirmed the decree of the trial court in all respects and dismissed the appeal with costs of the defendant.

4. After all these proceedings, the defendant filed M. P. 116/1124 for compensation under S.95, C.P.C., on the allegation that the plaintiff applied for an order of attachment before judgment on insufficient grounds. The defendant further alleged that he had no idea at all of defeating or delaying any of his creditors or the plaintiff and that he has not done any acts to alienate or secrete any of his properties. Though the plaintiff was fully aware of these circumstances, nevertheless, on insufficient grounds, he applied for attachment before judgment and in consequence, the defendant has lost his credit in the estimation of the public and has sustained loss in his business as Abkari Contractor and he claimed a sum of Rs. 1,000/- as and for damages.

5. This application was contested by the plaintiff on the ground that the attachment proceedings taken out by him were all perfectly legal and bonafide and on proper grounds.

The very fact that the court confirmed the injunction order of attachment clearly shows that the application for attachment before judgment was well-founded. On the facts also, he stated that the defendant had several debts and that he was attempting to alienate the properties with a view to defeat his claims. He also contended that the defendant is not entitled to any damages unless he is able to satisfy the court that he has incurred special damages in consequence of the attachment.

6. The learned District Judge, Anjikaimal, after a consideration of all the circumstances came to the conclusion that the attachment was applied for by the plaintiff on insufficien