Proper procedure required in the matter of proceeding u/s 95.

This is an appeal against the judgment and decree of the learned District Judge of Kanyakumari in Original Suit No. 174 of 1950.

The plaintiff and the first defendant were the owners of a rice mill known as the Janaki Mills, situated in Nagercoil town. The first defendant filed a suit against the plaintiff in Original Suit No. 994 of 1113 (M.E.) in the Nagercoil Munsif’s Court, for dissolution of partnership and accounts and that suit was compromised on 9-5-1124 (M.E.). The second defendant an advocate, practising in Nagercoil, was appointed receiver during the pendency of the suit; and he was in possession of the above mentioned rice mill for a period of about six years until the plaintiff obtained possession through Court on 6-3-1125 (M.E.). The plaintiff alleged that during the period when the aforesaid receiver was in possession of the mill, various materials were found missing. The plaintiff also alleged that defendants 1 and 2 colluded together and removed the above materials with a view to obtain wrongful gain and cause wrongful loss to the plaintiff. The value of the parts thus found missing, was assessed at Rs. 4,592; and the plaintiff filed the suit against the first defendant and against the second defendant (advocate receiver) for a decree for the above sum of money as damages together with subsequent interest.

The first defendant alleged that as the plaintiff was unlawfully selling parts of the mill, he had applied for the appointment of a receiver for the mill. It was untrue that he colluded with the second defendant and removed any of the articles. The plaintiff without any cause of action against this defendant attached his moveables before judgment. Therefore, the plaintiff should pay damages to the first defendant.

The second defendant admitted his taking possession of the mill as receiver, in the prior suit in the Nagercoil District Munsif’s Court. Until he obtained possession, the plaintiff was in possession. He did his best as receiver to see to the safe custody of the articles entrusted to him. On his motion, a watcher was appointed to look after the premises. Due to the apathy of the plaintiff, and the first defendant, there were thefts in the mill, and the second defendant made timely approach to the Court, and necessary action was taken therefor. It was alleged that, in any event, the value given to the missing articles was excessive.

The learned District Judge who tried the suit found that the plaintiff had no cause of action against the first defendant and no proper grounds for suing him. As regards the second defendant, the finding of the learned District Judge was that though there was loss of the articles from the mills due to theft, it had not been proved that such loss was caused by the wilful default or gross negligence of the receiver, second defendant. Therefore, the plaintiff could get no relief either against the first defendant or against the second defendant. The suit was dismissed. The learned District Judge also found that since the plaintiff had filed the suit against the first defendant, without any proper reason, and had also obtained an order of attachment of the first defendant’s properties before judgment without proper reason, the plaintiff was liable to pay Rs. 100 as damages to the first defendant. In the result, the suit, as already stated, was dismissed with costs of the contesting defendants, and the plaintiff was also ordered to pay Rs. 100 by way of damages to the first defendant for attachment before judgment on insufficient grounds.

From the above decision the appeal is filed by the plaintiff. The plaintiff urged two contentions. The first was that the finding of the lower Court that there was no default or wilful negligence on the part of the receiver, second defendant, is incorrect and therefore, the plaintiff should be given relief by way of damages against the second defendant. It was next urged that the direction of the Court below ordering the plaintiff to pay