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Report No. 27

Section 95

1. Arrest and attachment before judgment, etc., are provided for by Order 38. Where such arrest or attachment appears to have been applied for on insufficient grounds, or where the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting the same, the court has, under section 95(1), power to award reasonable compensation to the defendant "for the expense or injury" caused to the defendant. Now, the exact scope of the words "expense or injury" has been a matter of some controversy, and a conflict of decisions has arisen on the question whether damages may be awarded under this head for injury to reputation. One view is, that such damages can be awarded1-2. The matter was discussed fully in a recent Bombay case3, which held, that the word "injury" does not necessarily mean injury to property or person, and includes injury to reputation and mental pain. This is also the view of the Madras High Court4.

2. The Calcutta view, however, is, that damage to prestige or a feeling of humiliation is not "injury" within the meaning of section 955-6-7.

3. The General principles under Law of Torts8 do not seem to rule out damages for humiliation, etc. In the case of arrest, particularly, damage to reputation has a very strong ground for recognition.

4. The position needs to be clarified. Sub-section (2) of section 95 bars a separate suit, once the application under section 95 is "determined". In view of this, it would be desirable to adopt the wider view. Necessary change is proposed.

1. Srinivasa Ragavan v. Sundarajan, AIR 1955 Mad 552.

2. As to general damages, see Arumugam Pillai v. A. Kadir, AIR 1926 Born 962.

3. Parikh Jivanlal v. Shah Chhitalal, ILR 1959 Born 1686: AIR 1960 Born 326 (328), paras. 7 to 9 (Datar and Tarkunde JJ.).

4. The Madras case would be found reviewed in Subrayan v. Kochuvarkey, ILR 1958 Ker 819: AIR 1959 Ker 18 (21).

5. Chandulal v. Purnachandra, (1935) 39 CWN 915.

6. Joharmal v. Iszvardas, ILR 59 Cal 1082: AIR 1932 Cal 695 (DB).

7. See also Seenappa v. Suryanarayana, AIR 1958 Mys 136.

8. Ratanlal Law of Torts, (1960), p. 222; Iyer Law of Torts, (1957), pp. 333 to 336, paras. 14 and 15.

Section 97

The words "passed after the commencement of the Code" have become unnecessary with the passage of time. Hardly any case of preliminary decree passed before the commencement of the Code, and open to challenge in appeal, can now be in existence. Hence the amendment.

Section 98

1. Existing section 98 is not comprehensive enough, because it does not cover one case, namely, where a Bench of more than two Judges is equally divided, and a reference to another Judge is practicable. Contrast clause 36 of the Letters Patent of Bombay, etc., High Courts, which is, in this respect, wider than the Civil Procedure Code. It is considered that such a case should also be covered. The matter is dealt with in clause 36 (latter half) of the Letters Patent of the High Courts of Bombay, Madras and Calcutta1, clause 28, Patna, clause 27, Allahabad2, and clause 26, Nagpur.

2. On the other hand, two cases which are already covered by section 98 and which are not covered in the Letters Patent, namely, the cases where the reference to a third Judge is not possible, or where there is no majority which concurs in varying the decree, will continue to be covered. These are impliedly covered by section 98(2), main paragraph, because, where the proviso does not apply, the main paragraph will apply.

3. Further, as recommended3 in the Fourteenth Report, the provision relating to reference to another Judge should be extended to cover points other than points of law. (At present in such a case the decree must be confirmed)4.

4. Necessary changes have been proposed.

5. See also the working of section 66A(1), proviso, Indian Income-tax Act, 1922, now section 259(2) of the 1961 Act. Contrast section 429, Criminal Procedure Code, whereunder the opinion of the third Judge is the conclusive decision.

1. See Abdul Latif v. Abdul Samad, AIR 1950 Assam 80.

2. See Ashtabhuja v. Board of Revenue, AIR 1954 All 521.

3. 14th Report, Vol. I.

4. Muhammad Ibrahim v. Sundar, AIR 1937 Nag 88.

Section 99

A question has been raised as to whether "non joinder"' should be added in the section, as in Order I, rule 9. It is considered unnecessary to do so as-

(a) non-joinder of an essential party should be regarded as a fatal defect, and

(b) non-joinder of a proper party would not, even now, entail variation, etc., of a decree.

Section 100

1. The legislature of the erstwhile State of Travancore-Cochin has inserted1 an additional clause (d), which is as follows:-

(d) "the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question.".

(See now Kerala Act 13 of 1957 to the same effect).

This runs counter to the accepted scope of second appeal, and as observed in the Fourteenth Report2 of the Law Commission, it should be repealed by a suitable measure to be enacted separately.

2. A recommendation has been made in the Fourteenth Report3 for resolving the conflict of decisions on the point as to whether an appeal can be admitted on certain questions only. It is felt, that the power of the appellate Court should not be so confined. Hence no amendment is suggested.

1. Vide Travancore-Cochin Act 17 of 1951.

2. 14th Report, Vol. I.

3. cf. 14th Report, Vol. I; Eswariah v. Rameswarayya, AIR 1940 Mad 483 and Rekha v. Ramanandan, AIR 1936 Pat 7.

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