Kandasamy Pillai v. Selvadurai.
1940Present: Howard C.J. and Hearne J.
KANDASAMY PILLAI v. SELVADURAI.
93—D. C. Jaffna, 38.
Wrongful seizure—Seizure of property by judgment-creditor after .247 action—Claim for damages—Proof of malice.
Where a judgment-creditor, who on the conclusion in his favour of anaction instituted by him under section 247 of the Civil Procedure Codeseized property, was sued for damages for wrongful seizure by theclaimant who succeeded in his appeal in the 247 action,—
Held, that the plaintiff was bound to aver and prove malice.Ramanathan Che tty v. Meera Saibo (32 N. L. R. 193) followed.
HIS was an action for damages for wrongful seizure of a schooner
belonging to the plaintiff by the defendant in execution of a writ issuedin D. C. Jaffna, No. 1,536. On August 22, 1934, the defendant obtaineda writ and seized the schooner as the property of his judgment-debtors.The plaintiff claimed the schooner on a bill of sale executed in November,1932, and his claim was upheld on September 25, 1934. The defendantthen filed a 247 action against the plaintiff and was successful. There-upon he obtained a reissue of the writ and the schooner was seizedagain on November 9, 1935. In appeal the judgment in the 247 actionwas set aside and the schooner was held not liable to seizure.
5 2 Leader L. It., Part II., p. 11.
1 25 -V. I. J?. ISo.
Kandasamy Pillai v. Selvadurai.
Founding his claim for damages upon the seizures on August 22, 1934,and November 9, 1935, the plaintiff asked for judgment in the sum ofRs. 15,600. T)he District Judge awarded him Rs. 4,000.
N.Nadarajah (with him H. W. Thambiah and M. Tiruchelvam), fordefendant, appellant.—The second seizure was effected by virtue of anorder of Court. If goods are' seized under a writ or warrant whichauthorise the seizure, the seizure is lawful, and no claim for damageswill lie in respect of the seizure—Ramanathan Chetty v. Meera SaiboMarikar'. If the seizure is under judicial sanction no action for damageswill lie without express allegation of malice and strict proof thereof.In the present case malice was not pleaded, and the action must fail.See Hart v. Cohen Beukes v. Steyn % Cohen, Goldschmidt & Co., v. Stanleyand Tate De Alwis v. Murugappa ChettyWalker v. Olding et al‘,The Quartz Hill Consolidated Gold Mining Company v. Eyre7. Thequestion of malice was not raised even in the form of an issue and we hadno opportunity to lead evidence on that question.
■ The claim for damages on the first seizure is clearly prescribed.
V. Perera, K.C. (with him C. Thiagalingam and V. F. Guneratne),for plaintiff, respondent.—The decree of the Supreme Qourt in caseNo. 6,926 is conclusive on the point that the plaintiff has legal title to the*schooner, which was seized. In a claim proceeding, while an orderunder section 244, Civil Procedure Code, would affect possession only,an action under section 247 is conclusive as regards title. The questionto be considered therefore is whether the seizure was the act of the Courtor of the party. A bare declaration is the only advantage which one canobtain in a 247 action. All that the defendant obtained in the DistrictCourt was declaration and not an order to seize—Haramanis v. Hara-manis". On a mere declaratory decree no execution is possible—Vengadasalem v. Chettiyar”. The decree could not even operate as resjudicata when an appeal was pending, and it did not confer anyrights until final adjudication in appeal—Annamalay Chetty v. Thornhill ”.
It would be necessary to plead malice only if the seizure was madeat the instance of Court. The cases cited on behalf of the appellantare not therefore applicable in the present case. Where there is awrongful seizure made at the instance of a party damages are recoverablewithout proof of malice.—Ramanathan Chetty v. Meera Saibo Marikar'1.
Even if it is necessary to prove malice in this case, the question ofmalice was in fact agitated at the trial in the District Court. It waspleaded that the seizure was “ wrongful ”. There was sufficient materialplaced before Court proving malice. It is the substance and not theform of the proceedings which should be considered—Jayawickreme v.AmarasurlyaMalice does not mean ill-will; an intention to causewrongful injury is sufficient—Serajudeen v. Allagappa Chetty “.
1 (1930) 32 N. L. ft. 193.
10 S. C. (Cape) 303.
;i (1ST7) Buchanan 22.
2 K. 133.
5 (1909) 12 A7. L. It. 353.» (ISO3) 7 L. T. 033.
:■ /.. It. (1882-3) 11 Q. B. D. 074.* (1907) 10 N. L. R. 332.
<■ (1928) 29 A7. L. R. 440.
"> (1931) 33 N. L. R. 41.
“ (1030) 32 N. L. R. 193.
« (191S) 20 A7. L. R. 289 at 297.
13 (1919) 21 A L. R. 428.
HE ARNE J.—Kandasamy Pillai v. Selvadurai.
In regard to prescription, until the date of the decree of the SupremeCourt in the 247 action no cause of action arose—Muttiah Chetty v.Mohamood Hadjiar ', Tepanis Appu v. Appuhami*. In the 247 actionitself we could not have claimed damages—Haramanis v. Haramanis(supra). Further, section 10 of the Prescription Ordinance (Cap. 55)would be applicable.
N. Nadarajah in reply.—The prescriptive period is two years fordamages for wrongful seizure—Avichi Chetty v. Ibrahim Natchia Bastianhamy et al v. Silva et al.'
The contention that a 247 action is purely declaratory and that processcannot issue is not tenable. A 247 action is nothing more than an appealfrom an order in the claim proceedings—Adarahamy v. Abrahama,Abdul Cader v. Annamalay °, Mell v. Fernando et aL1 It is necessarilya part of the execution proceedings. It is an action within an action.See Chitaley & Rao’s Code of Civil Procedure, Vol. 2, p. 1891, Daulat v.Ramappa ’, Rajamier v. Subramaniam Chettiar % Srimati Bubi Kumariv. Misra ”, Mitchell v. Mathura Dass", Sardhari Lai v. Ambika, Pershadet al.” The argument therefore that the seizure was made withoutjudicial sanction cannot be upheld.
!W appeal to the Supreme Court in case No. 6,926 did not operateas a stay of proceedings pending the result of the appeal—Arunasalem v.Somasunderam", Adamalay & Co. v. de Soysa", Barker v. Lavery ",The Annot Lyle”. Where malice is the basis of an action it must bespecially averred—Nathan’s Common Law of South Africa, Vol. 3,p. 1701, Clissol v. Catchley'1 * * 4 * * 7. Mere general allegations such as that theact was done “ wrongfully ” or “ improperly ” will not render the pleadingsufficient—Day v. Brownrigg ", Bullen & Leake’s Precedents & Pleadings(8th ed.), p. 41.
Cur. adv. vult.
September 26, 1940. Hearne J.—
The defendant in the Court below was the successful plaintiff in caseNo. 1,536 of the District Court of Jaffna. On August 22, 1934, heobtained a writ and seized a schooner, the “ Anandapoorany ”, as theproperty of his judgment-debtors. The plaintiff objected on the groundthat the schooner had passed to his possession, as the owner, on a bill ofsale executed in November, 1932, and, at the inquiry held on September25, 1934, his objection was upheld. The defendant then filed a 247action, No. 6,926, against the plaintiff and was successful. By decreedated October 22, 1935, the schooner was held “ to be executable underthe decree in 1,536 Jaffna ”. Thereupon the defendant. obtained areissue of the writ in that case and the “ Anandapoorany ” was seizedonce again on November 9, 1935. This Court, however, reversed the
1 (1923) 25 N. L. R. 1S3.
– (1919) 6 a. TF. R. 11.
■■■■ (1900) 5 N. L. R. 19.
4 0910) 2 Cur. L. R. 190.
* 0907) 2 A. C. R. 120.
■ (1396) 2 N. L. R. 166.
; (1396) 2 N. L. R. 225.f A. I. R. (1926) Nagpur 197 at 108.-A. 1. R. (192S) Mad. 1201 at 1207.
(1907) 35 Indian Appeals 22.
(1885) 12 Indian Appeals 150.
18 (1888) 15 Indian Appeals 123.
” (1918) 20 N. L. R. 321 at 326.
” (1918) 5 C. W. R. 285.
18 (1885)14 Q. B. D. 769.
,s (1886) 11 P. D. 114.
'■ L. R. (1910) 2 K. B. D. 244.
>» L. R. (1878-9) 10 Ch. D. 294 at 302.
HE ARNE J.—Kandasamy Pillai v. Selvadurai.
decree dated October 22, 1935, and held that the schooner was not liableto seizure. Founding his claim for damages upon the seizure on August22, 1934, and November 9, 1935, the plaintiff asked for judgmentin the sum of Rs. 15,600. He was found to be entitled to Rs. 4,000.The defendant has now appealed praying that the judgment of thelower Court be reversed, while the plaintiff has entered a cross-appealin which he asks that the decree in his favour be varied so as to includethe full amount of damages claimed by him.
In the 247 action the defendant sought to impugn the bill of saleon which the plaintiff based his title and, although he was successful,it was held on appeal that one of the necessary conditions on which thebill of sale could be avoided had not been established. For the purposesof this appeal, therefore it must be assumed that the plaintiff, at allrelevant times, was the legal owner of the property seized.
In view of the finding by this Court in favour of the plaintiff, it has notbeen argued by Counsel for the defendant appellant that the first seizurewas- not wrongful. The writ which was issued did not specificallymention the schooner. The defendant pointed it out to the Fiscal’sofficer who was entrusted with the execution of the writ and he mustaccept full responsibility. The main argument addressed to us by hisCounsel was that the claim to damages in respect of the seizure 'isprescribed. To this I shall return.
In regard to the second seizure, however, Counsel’s argument wasto the effect that, consequent upon its finding in the 247 action, the Courthad ordered the seizure of the “ Anandapoorany ” and that the plaintiffcould not succeed as he had not averred malice in his pleadings.
This is in accordance with decisions in South Africa where it is madeclear that if the creditor acts under the sanction of judicial process,there must be an allegation and proof that he has mala fide set the lawin motion. (Beuk.es v. Steyn Hart v. Cohen Cohen, Goldschmidt & Co.v. Stanley and Tate 3.) While in the case of Ramanathan Chetty v. MeeraSaibo Marikar *, it was held that “ if the goods are seized under a writ orwarrant which authorised the seizure, the seizure is lawful and no actionwill lie in respect of the seizure, unless the person complaining canestablish a remedy by some such action as malicious prosecution ”.
The answer to this, on the part of Counsel for, the plaintiff-respondent,is that the second seizure was also the act of the defendant and.not thatof the Court. In his argument case No. 6,926 was an independent,declaratory action the result of which prevented his client from objectingto the second seizure, but the defendant remained liable in damages if itwas later found, as this Court eventually found, that his judgment-debtors had no property in what he had seized. With this statement ofthe law I am unable to agree.
If the matter were entirely free from authority, I would take the viewthat an action under section 247 is in essence a continuation of theexecution proceedings, and that its object is to determine, for the purposeof those proceedings, the liability or the non-liability of the propertyseized to satisfy the decree under execution.
* Bitch. (isn't p. 22.3 2 K. 133.
1 16 S. C. 363.1 (1930) 32 X. L. R. 103 «( p. 193.
HE ARNE J.—Kandasamy Pillai v. Selvadurai.
I find, however, that the corresponding Indian section has beeninterpreted by the Courts in India in the same way. “ The object of thesuit ”, it was held in 12 Indian Appeals 150, “ is to establish the rightwhich has been negatived by the claim order and is in substance to set itaside”. “The claimant’s remedy is to establish his title by a declaratorydecree and to carry the decree to the Court by which the order of attach-ment was issued and such Court is bound to recognize the adjudicationand govern itself accordingly”. (Chitaley Vol. 11, page 1896 in aquotation from 4 Mad. 131). In A. I R. (1918) Madras 568 the Judge,after deciding in favour of the execution-creditor in a declaratory suit,concluded that on this finding “ he had a right to attach the property ”.Several other Indian cases were brought to our notice. They are all ofthe same tenor.
It is of interest that as far back as 1862 it had been decided in England,in a case in which malice was not alleged, that an execution-creditor wasnot liable to the person whose goods had been wrongfully taken inexecution for any damage sustained by him in consequence of their saleunder an interpleader order (Walker v. Olding and other'). The ratiodecidendi was quite simply that, after the interpleader order, the attach-ment was the^consequence of the decision of the Court.
Ih8 my opinion the defendant, on the conclusion in his favour of theaction instituted by him under section 247, was clearly acting under awrit which authorised the seizure of the schooner, and in the absence of.an averment of malice the plaintiff’s cause of action was incomplete.
Counsel for the plaintiff took another point. He referred to the factthat the plaintiff gave evidence of malice, was cross-examined on it,-:nd that there is a finding of malice against the defendant. I do notthink the cross-examination of the plaintiff by defendant’s Counselmust be taken to mean that the question of malice was put in issueby him. There was no allegation of malice in the plaint, the defendantwas not called upon to meet it, no issue was framed, and it would bemanifestly unjust at this stage to turn an action of one kind into anaction of a different kind. I would, however, add that if it werenecessary to do so, I would hold that the plaintiff’s evidence regardingmala fides is not borne out by a consideration of all the facts of the case.
Turning to the damages claimed in respect of the first seizure, Counselfor the defendant argued that as it took place on August 22, 1934, andcontinued till September 25, 1934, the action should have been broughtwithin two years from the latter date under section 9 of the PrescriptionOrdinance. The submission by Counsel for the plaintiff that section 10applies is not, I think, correct. There is authority to the contrary.Bui he also argued that if his client had filed an action before thedetermination. of the 247 action on appeal it would have been premature.It would be more correct to say that he did not file his action while he wasin doubt regarding the fate of his appeal. In either case the circum-stances do not fall within the provisions of section 13 or 14 of thePrescription Ordinance. Again, the claim for damage to the schooner(Rs. 3,800) was in reality founded, not on the act of seizure which causedno injury, but on the alleged negligence of the defendant, subsequent
1 153 E. R. p. 1033.
24HE ARNE J.—Kandasamy Pillai v. Selvadurai.
to the seizure, In moving the vessel from the anchorage selected by theplaintiff to shallow water closer to the shore ; and this cause of action,as it appears to me, is independent of whether the seizure was right orwrong.
In conclusion I would refer to the pleadings of the plaintiff and theevidence he offered in regard to damages. The claim in respect of thefirst seizure was for Rs. 3,800 and the evidence was of a most meagrenature. Not a single receipt in support of alleged disbursements wasproduced. The original claim in respect of the second seizure was for lossof use (Rs. 6,500) and for deterioration (Rs. 1,500). An application toincrease the latter to Rs. 5,000 was refused and later the Judge, inallowing it, in effect revised his own order. The plaintiff attempted toexplain why he had increased his claim. At first he estimated thatRs. 1,500 would be sufficient for repairs. Later he was informed thatanother Rs. 1,500 would be required. So with a bold miscalculation,he claimed not Rs. 3,000 but Rs. 5,000. The tindal who was calledthought Rs. 10,000 would be required and somewhere between the twoextremes the Judge was invited to fix the amount. As the trial pro-gressed it would appear that the claim for loss of use (Rs. 6,500) wasreduced, for in the course of his evidence the plaintiff for ttie first timeclaimed a sum of Rs. 5,000 for pain of mind and loss of reputation,as being included in the claim for Rs. 6,500. Even if the plaintiff had agood cause of action, his vacillation, compromise and general vaguenesswere far from being a compliance with the accepted rule of practicethat a claim for special damages should be clearly stated and strictlyproved.
I would allow the appeal of the defendant with costs, dismiss the appealof the plaintiff with costs, and order that the plaintiff’s action bedismissed with costs.
Howard C.J.—I agree.
KANDASAMY PILLAI v. SELVADURAI