De Alwis V. Murugappa Chetty

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Middleton.

DE ALWIS v. MURUGAPPA CHETTY.

D. C., Kandy, 18, 985.

Wrongful seizure of a person's goods-Liability for damages-Malice - Mistake-Writ-Civil Procedure Code, s. 226.

Where a judgment-creditor procures the seizure of property belonging to a third party against whom there is no writ or warrant, he is liable in damages, whether he acted maliciously or not. It is no defence that the judgment-creditor acted under a mistake.

APPEAL by the defendant from a judgment of the District Judge of Kandy (F. R. Dias, Esq. ).

The defendant (appellant) caused the Fiscal to seize the goods belonging to the plaintiff (respondent) under a writ of execution against the plaintiff's father-in-law (Abeyratna). The plaintiff preferred a claim to the goods to the Fiscal, who released the goods on instructions from the defendant. The plaintiff then brought this action against the defendant for damages for the wrongful seizure. Judgment was entered for plaintiff.

The defendant appealed.

Bartholomeuz, for the appellant. -This action must fail, as the plaintiff has not proved malice on defendant's part. Malice cannot be presumed; it must be clearly proved. Counsel cited Meedin v. Mohideen, 1 Moss v. Wilson. 2

E. W. Jayewardene (with him H. A. Jayewardene), for the plaintiff, respondent. -Plaintiff need not prove malice (Damodhar Tuljarano v. Lallu Khusaldas 3). This being a real injury malice will be presumed (Voet 47, 10. 7; De Villiers, De Injuriis 73, 76).

Cur. adv. vult.

November 12, 1909. Hutchinson C. J. -

The defendant was a judgment-creditor of D. A. K. Abeyratna, and under a writ of execution against his debtor's goods caused the Fiscal to seize some goods belonging to the plaintiff. The plaintiff preferred to the Fiscal a, claim to the goods, and on the same day the goods were, on the defendant's instructions to the Fiscal, released from seizure. The plaintiff then brought this action for damages for the wrongful seizure.

In the plaint he alleged that the defendant had caused the seizure maliciously, and with the object of bringing disgrace on the plaintiff (who was the Interpreter Mudaliyar of the Police Court of Kandy),

1 (1897) 3 N. L. R. 27.                                                 2 (1906) 8 N. L. R. 368.

3 8 Bom. H. C. 177.

well knowing that his debtor (who is the plaintiff's father-in-law) had no property, and that the goods seized belonged to the plaintiff. The defendant admitted the seizure, the plaintiff's claim to the goods, and the release from seizure at the defendant's request, but denied that he knew the goods to be the plaintiff's, or that he acted maliciously and with the object of disgracing the plaintiff and without reasonable and probable cause, or that he suffered any loss or damage in consequence of the seizure; he said that in getting the seizure made he acted bona fide, in the well-founded belief that the goods were the property of his debtor, and he asserted that in point of fact the goods belong to his debtor and not to the plaintiff.

Issues, were proposed by the defendant's proctor, which included issues as to whether the defendant knew that the goods did not belong to his debtor, and whether he acted maliciously and without reasonable and probable cause; but the issues which the Judge settled were these: -

(1) Did the defendant wrongfully seize the plaintiff's goods under the decree in his action against Abeyratna ?

(2) Was the seizure calculated to disgrace the plaintiff ?

(3) Damages.

There was, therefore, no issue as to malice or as to the defendant's belief that the goods belonged to his debtor; and there was no evidence of malice, except the circumstance that it seemed that he had no reason to believe that the goods were his debtor's. The goods were the furniture in the plaintiff's house, in which he and his wife lived, and the debtor did not live

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