Payment for damages to be treated as compensation for wrongful seizure.

Govinda Menon, J.-Defendants 1 and 3 in O.S. No. 153 of 1946 on the file of the Subordinate Judge’s Court, Coimbatore, appeal against the decree of the learned Judge directing them to pay a sum of Rs. 2,200 with future interest and costs to the plaintiff. There is a memorandum of cross-objections by the plaintiff, objecting to the dismissal of his suit with regard to his claim for Rs. 3,500.

The plaintiff claimed that he was the proprietor of a hotel by name The Star Biriyani and Meals Hotel in Coimbatore which was run in his own name and with his own funds. The ownership of the building was in the 1st defendant, though originally the transactions were with both defendants 1 and 3. On the basis of the landlord’s right to the building in which the plaintiff was conducting Ms hotel, the 1st defendant filed O.S. No. 221 of 1943 on the file of the District Munsif’s Court of Coimbatore, impleading only the 2nd defendant herein as a party defendant. The basis of the claim of the 1st defendant was that the hotel was being run by the present 2nd defendant and not by the plaintiff and as such the 2nd defendant owed the 1st defendant arrears of rent for the premises. The plaintiff further alleged that this suit by the 1st defendant against the 2nd defendant was a collusive one on a so called false agreement of tenancy and the decree was obtained collusively against the 2nd defendant. In execution of that decree, the entire movable properties which were in the hotel were attached and the plaintiff was also dispossessed of the premises. This was done on a day when the plaintiff was not in the hotel premises but was away at some other place, and the decree-holder and amin drove away the plaintiff’s agents, removed the things and articles illegally and unlawfully caused collusive records of delivery of possession. All the articles which were in the premises were not mentioned in the attachment list but only some of them were so included, the rest being clandestinely removed at the instance of the 1st defendant, secreted and appropriated to his own use. Such of the articles as were specifically mentioned in the attachment list are set out in schedule A to the plaint and those which have been secreted and appropriated are mentioned in schedule B to the plaint.

When the plaintiff came to know that the articles had been removed and that his servants were driven out from the premises, he filed a claim petition relating to the A schedule properties but the same was dismissed by the District Munsif. Thereafter, the plaintiff filed a suit against the present defendant 1 and 2 on the file of the District Munsif’s court to set aside the order on the claim petition. But during the pendency of that suit, the 2nd defendant paid off the decree amount in O.S. No. 221 of 1943 to the 1st defendant and since the decree was entered as satisfied, the attachment was raised and the plaintiff’s suit had to be dismissed as it became infructuous. After the attachment on the properties was raised, the 2nd defendant got possession of them. It has to be mentioned that when the articles were attached, the third defendant stood surety for custody and removed them, to his own place and subsequent to the raising of the attachment the third defendant handed over those articles to the 2nd defendant. The plaintiff therefore claimed; Recovery of the articles mentioned in Schedules A and B to the plaint which were valued at Rs. 1,000 and Rs.1,200 respectively and there was a further claim for damages incurred by him for the wrongful attachment of those properties in the sum of Rs. 3,500.

The 1st defendant who was the plaintiff in O.S. No. 221 of 1943 denied the allegations in the plaint and stated that the tenancy was in favour of the 2nd defendant and as the rent was not paid, he filed a suit against the 2nd defendant, obtained a decree, attached the moveables in the hotel and had them entrusted to the 3rd defendant on surety and when the 2nd defendant paid the decree am