- (1.) THIS is an appeal by the plaintiff against the appellate judgment and decree of the learned Civil Judge, Bharatpur dated 28th October, 1950. It arises out of a suit filed by Vaid Munnalal against the defendants Misrilal and Dwarkaprasad for the recovery of Rs. l200/- principal and Rs. 243/8 interest on the basis of the two letters one dated 28th January, 1949 and the other dated 28th March, 1949, each of which related to an advance of Rs. 600/- to the defendants.
(2.) THE plaintiff instituted the suit on 15th October, 1949 after giving a notice of 24 hours dated 12th October, 1949. He also applied for attachment before judgment during the pendency of the suit but attachment was not actually effected because security had been given by the defendants. The defendants pleaded that they had paid a sum of Rs. 539/4/3 to the plaintiff and consequently pleaded that the plaintiff was not entitled to the full amount claimed. They also prayed for special costs under sec. 35 (a) and 95 of the Civil Procedure Code. The learned Munsif, Bharatpur, who tried the case, found that the sum of Rs. 539/4/3 as alleged by the defendants had been paid by the defendants to the plaintiff. He consequently gave the plaintiff a decree for a sum of Rs. 904/3/9 on account of principal and interest but disallowed the costs to him. He also did not allow any costs of the suit to the defendants, nor did he allow any special costs either u/s 35 (a) or sec. 95 of the Civil Procedure Code. This judgment of the learned Munsif was pronounced on 29th January, 1950. Against the above judgment and decree of the learned Munsif both the parties went in appeal. The plaintiff challenged the decree of the first court so far as the disallowance of a sum of Rs. 539/4/3 was concerned. He also challenged it on the ground that no costs had been awarded to him. The defendants in their appeal challenged the decree of the first court on the ground that no cost and special damages had been awarded to him. The learned Civil Judge, who heard and decided the appeal, dismissed the plaintiff's appeal and partly allowed that of the defendants by his judgment dated 28th October, 1950. The decree was modified to this extent that the defendants were awarded Rs. 67/8 by way of costs of the suit and Rs. 100/- as special damages u/s 95 C. P. C. on account of attachment before judgment. The plaintiff Vaid Munnalal came to this Court in second appeal. He died during the pendency of this appeal and the present appellant Jagoo has been substituted in his place. I have heard Sri D. K. Soral on behalf of the appellant and Shri P. G. Bhandari on behalf of the respondents. It has been argued by Sri Soral that the lower courts were not justified in allowing Rs 539/4/3 and costs of the suit. He argued that the documents in suit showed that nothing would be paid towards the debt unless a written receipt was obtained from the plaintiff. As no such receipt was obtained the plaintiff's evidence could not be believed. He also argued that the plaintiff was entitled atleast to costs proportionate to his success. It was also argued that the defendants ought not to have been allowed any costs at all. Finally it was argued that the lower appellate court was altogether unjustified in awarding Rs. 100/- as special damages u/s 95 C. P. C. because although the plaintiff had applied for attachment before judgment yet the attachment could not be effected as security had been filed by defendants. On behalf of the defendants it has been argued by Sri Bhandari that the finding so far as the payment of Rs. 539/4/3 is concerned is a finding of fact and cannot be challenged in second appeal. As regards the costs of the plaintiff it was argued that the plaintiff had come to court suppressing the fact of the payment of Rs. 539/4/3 and had made unnecessary hurry in filing the suit because the notice gave the defendants 24 hours' time and it was served on the defendants on 14th October, 1949 and not even 24 hours had passed between the service of the notice and the filing of the suit. The lower appellate court was therefore perfectly justified in not allowing any costs to the plaintiff and awarding Rs. 67/8 as costs to the defendants. As regards Rs. 100/- by way of special damages u/s 95 G. P. G it was argued that the plaintiff had applied for attachment before judgment without any justification whatsoever. The lower appellate court was therefore perfectly justified in awarding Rs. 100/- as special damages u/s 95 G. P. G. to the defendants. I have considered the arguments of both the learned counsel. So far as the finding about the payment of Rs. 539/4/3 is concerned it is a finding of fact and both the lower courts have given it concurrently. It may be that in the documents in suit it had been stated that no money would be paid without any receipt yet it cannot be said that on account of this statement in the two documents the money which is actually proved to have been paid should not De deducted from the amount in suit. Both the lower courts have believed the evidence regarding payment and I do not think I would be justified in going against the concurrent finding of both the lower courts in this respect. So far as the disallowance of the costs to the plaintiff is concerned. I cannot find any fault with the discretion of the lower courts in disallowing the costs to the plaintiff as he suppressed the fact of the payment of 539/4/3 and was hasty in bringing the suit inasmuch as he did not allow reasonable time to elapse before the service of notice and the bringing of the suit. The notice was posted on 12th October, 1949 and it was a registered notice. Simply because 24 hours' time was given it should not have been presumed by the plaintiff that it was delivered the next day. After all it was registered notice and it could not be delivered to any body excepting the addressee. The plaintiff did not take the precaution of sending an acknowledgment receipt with the registered notice which could have given him an indication as to on what date the. notice was actually served. The suit was filed in about 72 hours after the despatch of the notice and I do not think that the plaintiff was justified in the circumstances of the case to file the suit without giving reasonable time for the service of the notice. It may be noted that the claim was not going to be time-barred. Not even a year had elapsed since the two documents were executed and therefore the plaintiff could very well have waited for a day or two more for the bringing of the suit. There are circumstances in this case from which it can be said that the discretion exercised by the lower courts was not arbitrary or capricious and that it was exercised judicially. Under these circumstances I find no reason to interfere with the decree in the matter of the disallowance of the costs to the plaintiff As regards awarding of the costs to the defendants it was also in the discretion of the courts. The lower appellate court thought that the plaintiff was rather too hasty in bringing the suit and probably the defendants would not have had to incur any costs in defending the suit if reasonable time had been allowed to them after the receipt of the notice. The plaintiff also suppressed the fact of payment of Rs. 539/4/3. If the lower appellate court in circumstances of the case awarded costs to the defendants it cannot be said that the order was unjustified and it should be interfered with. Coming to the last point regarding the awarding of Rs. 100/- as special damages u/s. 95 C. P. C. I have perused the provisions of the said section. It opens as follows: ''where in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section (that is section 94 ). " Therefore it is clear that arrest and attachment must have been effected before any compensation u/s 95 C. P. C. can be claimed. In the present case it is clear from the judgment of the learned Munsif that attachment had not been effected. Learned counsel for the respondents also did not seriously argue that attachment had been effected under these circumstances I do not think the lower appellate court was justified in awarding compensation to the defendants. Sri Bhandari has relied upon a ruling of Calcutta High Court in Anandchandra Dutta vs. Shariatulla Fakir (1) in which it was held that "the provisions contained in sec. 95 are wide enough to include conditional attachments improperly ordered ; and that there is nothing in the language of sec. 95 which excludes conditional attachment of the class contemplated by O. 38 R. 5 (3) from its operation. " In this ruling a ruling of Madras High Court in Narahari Ayyar vs. Vaithinatha Ayyar (2) was relied upon. By the learned counsel for the appellant reliance was placed upon a ruling of Rangoon High Court in A. H. Mohamed Ismait & Go. vs. S. M. Ashgar & Co. (3) in which it was held that "compensation will be granted only where damage has resulted and where only an order of attachment before judgment has been passed but the property has not been actually attached in pursuance of the order, it cannot be said that the mere order of attachment has resulted in damages and hence the person whose property has been ordered to be so attached cannot claim compensation u/s 95. " Reliance was placed in this ruling upon a ruling of Bombay High Court in Rama Ayyar vs. Govinda Pillai (4) and Kedarnath Tulsidas vs. Beharilal Jagmal (5 ). It was also held by the Judicial Commissioner of Bhopal in Laxmichand vs. Abdul Gaffar (6) that unless attachment is effected in application u/s 95 C. P. C. could not lie. In that case an order of attachment before judgment was made but on the furnishing of the security by the defendant attachment was not made. It was held that compensation could not be awarded under sec. 95 under the circumstances of the case. I have gone through the ruling in the case of Narahari Ayyar vs. Vaithinatha Ayyar (2), referred to above, on which the learned Judges of Calcutta High Court, who decided the case of Anandachandra Dutta vs. Shariatulla Fakir (2), mentioned above, relied. It does not appear from this ruling that the attachment was not actually effected. All that appears from the ruling is that the attachment was cancelled after about two months and that no special damages were alleged. I do not think there is warrant in this ruling for the view that if security had been furnished and no actual attachment made compensation can be awarded u/s 65. To my mind the words of sec. 95 are quite clear and compensation is awardable only when arrest and attachment had been effected and it is not awardable when attachment is averted by the furnishing of the security. The appeal is partly allowed and the decree of the lower appellate court so far as the awarding of Rs. 100/- as compensation u/s 95 C. P. C. is concerned is set aside. In other respects the decree of the lower appellate court is confirmed. In the circumstances the parties shall bear their own costs of this appeal. . ;