Decided on October 13,1955



- (1.) This appeal is by the plaintiff in a suit for damages for wrongful injunction.
(2.) The facts may be shortly stated as follows: Defendants 1 to 4 are brothers and constituted a joint Hindu family of which the 1st defendant was the manager. Their mother is the 5th defendant. The plaintiff had made loan of moneys under a promissory note to the 1st defendant for meeting some family needs. For realisation thereof the plaintiff filed OS No. 2063 of 1107 in the Nagercoil Munsiffs Court against the 1st defendant as manager of the joint family and obtained decree. In due course of execution he purchased in satisfaction of the decree certain properties belonging to the family on 26.11.1108. But just before he could obtain delivery in execution, of the properties so purchased, the 4th defendant filed separate suit OS No. 20 of 1109 in the Nagercoil District Court for partition of the joint family properties incidentally questioning various obligations undertaken by the 1st defendant as if on behalf of the family inclusive of the promissory note in favour of the plaintiff. The plaintiff was impleaded as the 3rd defendant in that suit. Pending the trial and disposal of that suit OS No. 20 of 1109 the 4th defendant applied for and obtained temporary injunction against the plaintiff restraining the delivery in execution of the decree in OS No. 1063 of 1107 of the properties sold in court auction. That order was passed on 8.3.1109 and was confirmed after hearing the plaintiff. Subsequently on the motion apparently of the 4th defendant, receiver was appointed over all the properties of the family inclusive of the properties purchased by the plaintiff and involved in OS No. 20 of 1109 and the profits collected by the receiver was distributed to the members of the family periodically towards their maintenance. The 4th defendant happened to function as such receiver for certain period. The suit OS No. 20 of 1109 was ultimately disposed of under Ext. I judgment dated 30.11.1118. The decree and the court sale obtained by the plaintiff was in the event upheld as against the family and the temporary injunction which till then had enured was dissolved by specific order dated 7.4.1119 so enabling the plaintiff to take delivery on 29.6.1119 of the properties he had purchased. As a result of the injunction order wrongly obtained by the 4th defendant, the plaintiff had been deprived of the profits of the properties during all the time between the date of his purchase and the dissolution of the injunction and he has laid this suit therefore for damages for the loss of the yield during this interval. This suit was filed on 23.5.1120.
(3.) The main contest in the case was by the 4th defendant and we are concerned at this stage, with only one of his contentions viz., as to the maintainability of the suit. The contention was elaborated was that the plaintiff, to sustain the action, had to prove malice and want of reasonable and probable cause in the matter of the injunction process obtained by the 4th defendant in the prior suit OS No. 20 of 1109. But there was neither allegations nor proof in support thereof. The court below after analysing the evidence let in by the parties came to the conclusion that the plaintiff had not made out either malice or want of reasonable and probable cause as contended for by the 4th defendant. On that ground it dismissed the suit leaving the rest of the questions in the case undetermined and hence this appeal by the plaintiff.;

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