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Present ': The Hon. Sir Joseph T. Hutchinson, Chief Justice, Off- St, 1910and Mr. Justice Wood Kenton.
RAMAN CHETTY v. VALUPURAM.D. C. Jaffna, 7,163.
Arrest bt.fore judgment—obtainedby faint'nvennen..action
for damages—Whan warrens oj arrest should issue—Civil ProcedureCode, s. 660.
Although section 630 doesnot deal withthe pointin terms, a
Court would not, in the exorcise of its discretion conferred upon itby thatsection,be justifiedinallowing awarrant ofarrest before
judgment to issue, unless materials had been put before it by tbeapplicanttendingto showthathis debtorwas aboutto quit the
Island under circumstances rendering it improbable that the debtwould be paid.
The mere existence ofmalice in themind of acreditor,who is
applyingfor thearrest ofthedebtor before judgment,could expose
himto nolegal liability,provided always that he doesnotobtain
thearrestby maliciouslyputting false materials beforetheCourt;
where he does do so.the debtor isentitled torecoverdamages
fJpHE facts are set out in the judgment of Wood Renton J.
Bairn, for the plaintiff, appellant.
Bdlasinyham, for the defendant, respondent.
Cuts adv. visit.
October 21, 1910. Wood Bentos' J.—
I think that the circumstances, to which the learned DistrictJudge calls attention in his judgment, are sufficient to justify hisconclusion that the plaintiff-appellant acted'maliciously in applyingfor a warrant of arrest before judgment against the defendant-respondent under section 650 of the Civil Procedure Code; and,further, that he must be taken to have obtained the issue of thatwarrant of arrest by the allegation in his affidavit in support of it,that the respondent was possessed of no property. Although section650 does not deal with the point in terms, .1 do not think that anyCourt in the exercise of the discretion conferred upon it . by thatsection would allow such a warrant to issue, or would be justifiedin doing so, unless materials had been put before it by the applicanttending to show that his debtor was about to quit the Island undercircumstances rendering it improbable that the debt would be paid.
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oct. a, mo
Under these circumstances, the question arises whether suchconduct on the part of the plaintiff-appellant entitles the respondentto recover damages against him at law. In my opinion thisquestion must be answered in the affirmative. It is, of course, clearthat the mere existence of malice in the mind of a creditor, who n>applying for the arrest of his debtor before judgment, could exposehim to no legal liability, provided always that he does not obtainthe arrest by maliciously putting false materials before the Court.Where he does do so, it seems to me, both on principle and onauthority, that the debtor is entitled to recover damages against him.It was held by the Supreme Court, in the case of Thomis v. AhamadoLebbe Markar,' that an action would lie against a person whomaliciously and without any reasonable and probable cause appliedfor and obtained the issue of an injunction, when that injunctionhad been dissolved. It has been held in England that an actionwill lie for maliciously suing out a commission in lunacy (Turner t>Turner,2 Indedon v. Berry,* or in bankruptcy (Whitworth v. Hall *and see also Johnson v. Emerson5 and Metropolitan Bank v. Pooley.*In the present case the respondent obtained his discharge wheneverhe had an opportunity of doing so. The warrant of arrest wastherefore set aside; and as the learned District Judge has held,on materials which are sufficient to justify his decision, that theappellant procured its issue falsely and maliciously, I would hold,following the authorities above cited, that, he is liable to the re-spondent in damages. It was argued by Mr. Bawa that there wasnothing to show that the respondent had suffered any actual loss inconsequence of his arrest. The mere fact of the arrest entitles him,however, to damages, and I do not think that the amount whichthe District Judge has awarded is in any way excessive.
I would dismiss the appeal with costs, subject, however, to thededuction, by agreement between the parties, of the Rs. 100 expensesreferred to at page 4 of the record.
Hutchinson C.J.—I agree.
1(1876) Ram. 1872-1876, 281.* (1831) Bam. and Adol. 659.
(1818) Gate. 28.* (1871) L. R. 6. Ex. 327.
(1805) Selw. N. P. 1006.* (1885) 10 A. C. 210.
RAMAN CHETTY v. VALLIPURAM