MODI, J. - (1.) THIS is a plaintiffs' second appeal in a suit for damages for wrongful attachment which was partly decreed by the trial court but on appeal dismissed in toto by the learned Civil Judge, Udaipur.
(2.) IT is common ground between the parties that the defendant Amolakchand had obtained a money decree against plaintiff appellant No. 3 Purshottam and in execution of that decree, he applied for attachment of motor bus No. RJY 293 (the previous number being 706) on the allegation that it was the exclusive property of the latter. This application was made on the 16th September, 1952, and attachment was ordered and effected accordingly under O. 21 R. 30 C. P. C. on the next following date, that is the 17th September, 1952. IT may be mentioned that this bus was lying at the time in the work-shop of P. W. 2 Bhura-lal, a motor mechanic, as the vehicle needed some repairs. Thereupon, the plaintiff appellant Narainlal raised an objection before the executing court on the 21st October, 1952. That objection has not been brought on this record; but it is admitted before me that his case was that he was a co-owner of the bus to the extent of a half share therein. Defendant Amolakchand admitted the force of this objection and consequently the executing court removed the attachment under O. 21 r. 30 and instead imposed a fresh attachment under O. 21 r. 47 C. P. C. to the extent of the half share of Purushottam in the bus in question. This modified attachment was. ordered on the 29th November, 1952, that is, after 72 days of the initial seizure. Consequently the plaintiffs appellants namely Narainlal, the Taxi Motor Association Nathdwara and Purushottam instituted the suit, out of which this appeal arises, for recovery of damages amounting to Rs. 2,000/- on account of the wrongful attachment. IT may be pointed out that the Taxi Motor Association Nathdwara also sued as a plaintiff because as disclosed in the plaint, the bus stood registered in the name of the Taxi Motor Association Nathdwara at the date of the suit, the said association having been registered under the Societies Registration Act (No. VII) of 1941 of the former State of Mewar, some time in 1946. IT was also mentioned in the plaint that this bus stood in the name of plaintiffs Nos. 1 and 3 that is, Narainlal and Purushottam on the records of the Taxi Motor Association, Nathdwara, and that the profit arising out of the running thereof was to go to them in equal shares. The defendant resisted the suit. His case, put briefly, was that the bus really belonged to Purushottam and that its transfer to the Taxi Motor Association Nathdwara in the manner alleged by the said plaintiffs was little more than a device to defeat the creditors. It was also contended that the registration certificate of the bus had been deposited in the office of the Regional Transport Officer concerned some time in the month of June, 1942, and it remained so deposited upto January, 1953, and, therefore, it could not have been possible for any of the plaintiffs to run the bus during that period and no damage whatsoever was caused to them. It was also contended that if, on the allegations made in the plaint, the ownership of the bus stood transferred in the name of the Taxi Motor Association Nathdwara, then the plaintiffs Nos. 1 and 3 had no right to bring the suit as they had no interest subsisting in the bus; and the suit, as brought on behalf of the said Association, was also not properly brought inasmuch as there was nothing to show that the Secretary who had signed the plaint on behalf of the Association had been authorised by any resolution of it to do so. The learned Munsiff Magistrate Mavli who tried the suit held against the defendant on all the aforesaid contentions and decreed the plaintiffs' suit to the extent of Rs. 1000/- as damages. The defendant then went in appeal to the Civil Judge, Udaipur. The learned Civil Judge allowed the appeal and dismissed the suit. The findings of the learned Judge in the court below were (1) that none of the plaintiffs had any right of suit; (2) that they had failed to establish that there was any malice on the part of the defendant in obtaining the attachment, and (3) that they had failed to prove the damages as claimed. Aggrieved by this decision, the plaintiffs have come up in second appeal to this Court. The first question for decision is whether the finding of the learned Civil Judge that none of the plaintiffs had any tight to sue is correct. I am definitely of the opinion that that finding is wrong and cannot be sustained. The learned Civil Judge seems to have completely forgotten in this connection that the defendant Amolakchand had himself accepted before the executing court that the half share in the bus in question belonged to Narainlal, and it was on that account that the attachment by seizure under O. 21 r. 30 was removed and a modified attachment under O. 21, r. 47 C. P. C. was ordered. This is clearly borne out from a perusal of the order of the executing court Ex. p. 4 dated the 29th November, 1952. That being so, it seems to me to be too tall a proposition for the defendant to insist that Narainlal had no right of suit and the addition of the Taxi Motor Association Nathdwara as plaintiff No. 2 cannot deprive him of that right. The defendant's further case, however, is that, on the allegations contained in the plaint, it was the Taxi Motor Association Nathdwara only which had the right of suit and as there was nothing to show that the filing of such a suit had been authorised by a resolution of the Association under 7 (k) of the Mewar Societies Registration Act of 1941, the present suit was not properly brought and rightly dismissed. Now, the correct answer to that contention seems to be that it cannot be said definitely that even though the plaintiffs Narainlal and Pur-shottam had joined the Taxi Motor Association Nathdwara for certain purposes, they had foregone their rights of proprietorship with respect to the vehicle in question, and that being so, they would still continue to be the owners of this vehicle, and it would be going far to hold that the suit is bad because it was brought by an unauthorised person or persons. Consequently, I am unable to agree with the learned Civil Judge that Narainlal and Purushottam had no locus standi to bring this suit and set aside the finding of the Civil Judge on this point. The next important question is whether the finding of the learned Civil Judge that a suit like the present cannot lie unless the plaintiff proves malice is correct. Now, it can hardly admit of any doubt or dispute that the plaintiff Narainlal held a half share in the bus and therefore the actual seizure of the bus by attachment under O. 21 r. 30 C. P. C. could not possibly be maintained and the share of the said Narainlal was immune from attachment. All that the executing court could do under the circumstances was to adopt the mode of attachment under O. 21 r. 47 and issue a notice to the judgment-debtor prohibiting him from transferring his share or interest in the property or charging it in any way. It could not have ordered attachment by actual seizure under O. 21 r. 30 C. P. C. as it did. There is abundant authority for the view that a judgment-creditor would be responsible in damages to any person who is not a party to the proceedings and whose property he wrongfully causes to be attached in execution of his decree without proof of malice. See Dr. N. Lobo Vs. Babulal (2) Mangal Chand Vs. Zainab Bibi (2), Qaim Hussain Vs. Pirbbu Lal (3) and Kissori Mohun Roy Vs. Harsukh Das (4 ). On these authorities, I have no doubt that the plaintiff Narainlal had a right to sue for damages as the attachment qua him amounted to a clear trespass and was quite wrongful and he was a stranger to the main proceedings. The case of the Taxi Motor Association, assuming but not deciding that it had any interest in the bus in suit, would stand on the same footing. A further question arises however whether, Narainlal being a party to the suit and the proceeding in execution, can maintain this suit without proof of malice. The question seems to me to be purely academic under the circumstances as whatever answer is returned to it, the suit would still be maintainable at the instance of Narainlal plaintiff. Furthermore, I should like to point out that on principle, I do not see any valid justification for holding the view that Purshottam cannot maintain the suit unless he proved malice. The gist of the matter in an action of tort for damages for attachment is the wrongfulness of the attachment or that such attachment amounts to a trespass on the rights of the plaintiff, and where that condition is statisfied, an action for damages must be held to lie and the plaintiff need not prove malice. If that be so, then, as I have held above, the mode of attachment adopted qua Purushottam was also utterly improper, inasmuch as the bus had been attached by actual seizure which could not have been done, and thus he was also wrongfully deprived of the use of the bus for the period it remained under the impugned attachment. Was this not a trespass on Purushottam's right? In my opinion, it was. Therefore, he would also seem to be entitled to sue for damages for such trespass on his right. But even if I am wrong in this view, I am categorically of the opinion that the other plaintiff Narainlal was entitled to bring the present suit without having to prove malice, and I have, therefore, no hesitation in holding that the view of the Civil Judge that the present suit was bad for want of proof of malice is erroneous and must be set aside. The only question that remains to consider is whether the plaintiffs at all sustained damages ; and, if so, what should be the quantum thereof. It has been strenuously contended before me by learned counsel for the defendant respondent that it had been suggested in the written statement that the registration certificate of the bus in question had remained deposited in the office of the Regional Transport Officer from June, 1952, to January, 1953, and consequently the bus was not in a position to be utilised at all and therefore there was no question of any damages having been sustained by the plaintiffs and that the latter had not adduced any proof to show that this allegation was wrong. It is true that this allegation was made in the written statement. It is also true that a question was put to the plaintiff Purusha-ttam in that connection when he came into the witness box, but all that he said in reply thereto was that he did not remember whether that was correct. But this, without more, cannot be legitimately accepted as proof of the allegation which had been made by the defendant and the burden of proving which clearly lay upon him. It is remarkable that the defendant did not come into the witness-box at all. In these circumstances, I am not prepared to accept that the contention of the defendant that the bus was not in a position to be operated during the period in question can be taken as legally proved. It should have been the easiest thing for the defendant to prove this allegation by producing an official from the Regional Transport Authority's office to disclose that the bus could not have been possibly plied for the reason relied on by the defendant if that was a fact. This was not done. The finding of the learned Civil Judge therefore on this point also is wrong and must be set aside. It may further be pointed out in this connection that it was correct that while the bus was attached by the executing court, it was in the workshop of P. W. Bhoorelal a motor mechanic as it needed some repairs. But according to P. W. Purshottam, there was nothing seriously wrong with it and the repairs required related to its body. The defendant entirely failed to lead any evidence in rebuttal. Consequently, it is not possible to hold that because the bus Was in need of some repairs at the time of attachment, it was incapable of being plied during the entire or the bulk of the period during which it remained under attachment. The result is that the defendant cannot derive any advantage from this circumstance and I hold accordingly. The last question which now remains to decide is whether the finding of the learned Civil Judge that the plaintiffs have failed to prove the damages claimed by them is correct. On the findings at which I have arrived above, my answer to this question is in the negative. Now, to prove this issue, the plaintiffs led some oral evidence to show that they would have earned Rs. 30/- per day by plying this vehicle if it had not been attached as it was. The trial court did not accept this evidence at its face value. I agree that it should have been possible for the plaintiffs to lead better, more tangible, and more reliable evidence to prove the damages in so far as it may have been intended to claim them as special damages. But despite such failure, in my considered judgment, they would be entitled to general damages. There is no doubt that attachment by seizure of the bus was wrongful. It also admits of no doubt or dispute that the plaintiff Narainlal held a half share in it and therefore his share was not liable to attachment at all. And even so far as the judgment-debtor Purshottam was concerned there could not be any attachment of his share by actual seizure of the vehicle and only a notional attachment could have been ordered. The result was that the plaintiffs were deprived of the use of this vehicle for a period of over seventy days. It is not difficult to visualise in these circumstances that the plaintiffs must have been put to loss having been deprived of the use of this bus for all this period. I see no valid reason therefore why they should not be allowed general damages. I am happy to be able to find high authority for the view which has commended itself to me in the decision of the Privy Council in Mudhun Mohun Dass Vs. Gokul Dass (5 ). That was also an action for special damages for wrongful attachment. The plaintiff claimed special damages under three heads which they were unable to prove. It was in these circumstances contended that they were precluded from recovering general damages for the trespass. Their lordships repelled the contention by saying that although the plaint could have been drawn up more artistically, its effect in substance was to seek damages generally as consequent on wrongful attachment. And then they laid down the principle as follows: - "the principle ordinarily applied to actions of tort is that the plaintiff is never precluded from recovering ordinary damages by reason of his failing to prove the special damages laid unless the special damages is the gist of the action. " Their Lordships then proceeded to point out that in the case before them the gist of the action was not the special damage but the unlawful attachment, and the plaintiff could not be deprived of ordinary (or as one may call them general) damages for the actionable wrong, even if he had wholly failed to prove the special damage laid. With great respect, the present case is exactly parallel to the case before their Lordships, and I think that the principle of that case fully applies here. I hold, therefore, that even if the plaintiffs have failed to prove the special damages which they sought to prove at the trial, they cannot be precluded from getting general damages. Their measure is the only other question. Having regard to the circumstances I have already set out above, I assess these damages at Rs. 750/- as adequately answering the justice of the case. I hold accordingly. The result is that I allow this appeal, set aside the judgment and decree of the learned Civil Judge and decree the plaintiffs' suit for Rs. 750/- with proportionate costs throughout. . ;