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23. Order 21 Rule 43 requires attachment of movables to be effected by seizure. In a Bombay case, Sadashiv Govind Samant vs. Sheduram Sukhdev26, which was a suit filed for damages for wrongful seizure, it was argued by the defendant that the Sheriff had not actually executed the warrant of attachment by seizing the plaintiff's goods. The bailiff had visited the plaintiff's shop and served the writ of attachment, whereupon the Plaintiff went around, gathered the amount mentioned in the writ of attachment and paid the same under protest. The defendant's argument was that the cause of action of wrongful attachment was not complete unless there was actual seizure of the plaintiff's goods. Our court held that physical contact was not necessary to constitute actual seizure; symbolical acts might satisfy the requirement of Rule 43 of Order 21. The court referred to Multan Chand Kanyalal's case (referred to above). It also referred to the decision in Grainger vs. Hill27 where it was held that if the party was under a restraint and the officer manifests his intention to make a capture, it was not necessary that there should be any physical contact to amount to an arrest. The court held that the analogy applied where the question was whether any actual seizure was necessary in carrying 26 (1953) Bombay Law Reporter (Vol. LVI) 984 27 (1838) 4 Bing. 212 Pg 24 of 42 sg/sat nms2202-15.doc out attachment of goods. The court observed that the matter might be approached by asking : Was there at any time any restraint on the goods of the plaintiff in execution of the order. Applying that test, the court held that for at least over an hour and a half (when the plaintiff was arranging money to pay to the bailiff so as to avoid the attachment), the plaintiff's goods remained under restraint and this amounted to seizure. That clearly shows that attachment of movable property, whether under Order 21 Rule 43 or Order 38 Rule 5, which is to be effected by seizure of goods, does not require transfer of possession; mere custody is good enough.

" In considering whether the particular Act complained of constitutes a "continuing wrong" within the meaning of S. 23 for which the cause of action arises de die in diem it is necessary to keep in mind the distinction between an "injury" and the "effects of that injury." Where the injury complained of is complete on a certain date, there is no "continuing wrong" even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously, does not make the injury a "continuing wrong" so as to give him a fresh cause of action on each such occasion. If however the act is such that the injury itself is continuous then there is a "continuing wrong" and the case is governed by S.23. As observed by Mookerjee J., in 31 IC 242, the essence of a continuing wrong is that the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance; in such cases a fresh cause of action arises de die in diem. To put the matter in another way, where the wrongful act produces a state of affairs every moment's continuance of which is a new tort, a fresh cause of action for the continuance lies.

34 Notice of Motion No.1369/2012 in Adm. Suit No.27/2009, Order dtd. 23 August 2012. 35 Admiralty Suit No.8 of 2010, Order dated 27 August 2010.

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30. Apropos of the Plaintiff's plea that its counter-claim is an action to enforce the undertaking, it is important to bear in mind the object and purpose of the undertaking. The undertaking furnished by the original Plaintiff in the present case is in pursuance of Rule 941 of the Bombay High Court (Original Side) Rules, which is a statutory embodiment of a time-honoured practice of courts to require the applicant for injunction or any other interlocutory relief such as arrest of a ship pending trial to give an undertaking to abide by any order for damages that may be made if the respondent to the application suffers loss as a result of the order, and the court is of the opinion that the applicant should compensate him for such loss. According to Sir George Jessel MR in Smith vs. Day36, this undertaking, which is generally referred to as 'undertaking in damages', was invented by Knight-Brace LJ when he was Vice-Chancellor. It had been originally inserted only in ex parte orders for injunctions. Soon it came to be recognized as an important procedural device in any inter-partes application on motion, where the court did not know who would eventually prevail. The undertaking fulfilled two objectives. The first, as explained in his treatise 'Commercial Injunctions'37 by Steven Gee QC, was to enable the court to abstain from expressing premature views on the merits of the action and the second to enable the court to grant an injunction knowing that if the defendant prevailed he would usually obtain some compensation for having been subjected to an injunction. For our purposes, it is important to note that the undertaking is a means to the respondent to the original motion for interim relief to obtain compensation for loss caused by any order passed on the motion. It is secondly important to note that this 36 (1882) 21 Ch. D. 421 at P. 424 37 6th Edition, Para 11-003 at P.318 Pg 32 of 42 sg/sat nms2202-15.doc compensation is separate from damages claimed in an individual cause of action, where the order was obtained either maliciously or without reasonable cause, or in abuse of the process of the court or in breach of contract. In each of these latter cases, the respondent can obtain compensation on a cause of action founded on a specific actionable wrong committed by the applicant. For an action based on such cause of action there is no need for there to be any undertaking on the part of the applicant. The idea behind the undertaking is that it enables the court to grant compensation simply on the grounds (a) that loss is caused to the respondent by a court order and (b) that the court is of the opinion that the applicant must compensate him for such loss. It may be sufficient for the court to grant such compensation when it finds that the interlocutory relief causing loss was simply unjustified without anything more. It need not, in other words, look for any actionable wrong committed by the applicant for such relief.

38. There is a fundamental fallacy in this submission. The defendant's right in a suit filed by the plaintiff claiming any interlocutory relief, including an arrest pending the suit, as we have noted above, is not a right to claim against the plaintiff for a wrong committed by the latter either in contract or tort, but is a right to require the court to do complete justice between the parties before it, Pg 39 of 42 sg/sat nms2202-15.doc to require the court to compensate the defendant for loss caused by a court order, which the Plaintiff was not, in the first place, justified in seeking. The undertaking given to the court by the plaintiff in such a case, and which the defendant seeks to enforce as part of this right, is a mere means for enabling the court to do such justice between the parties. The undertaking is given to the court and not directly to the party or parties either identified in it or indicated in it. No party, including the defendant to the suit, is entitled to sue on it as if it were a contract between it and the plaintiff who furnished the undertaking. Even the defendant cannot maintain a claim, as if in contract, before any other forum for enforcement of the undertaking. A third party to the action naturally has no cause of action based on such undertaking. The form of the undertaking, no doubt, as submitted by Mr. Pratap, is a general commitment for compensating any aggrieved party for an arrest which is either wrongful or unjustified, but that is because of the very nature of an admiralty action. It is an action commenced against the res. There are no identified individual interests in the res when the admiralty action is commenced. The individual interests who are concerned in the action, and who may be affected by it, have to approach the court for being joined as party defendants to the action, be it the owners, the despondent-owners, the demise charterers or even the cargo-owners. That is why Rule 949 of the Bombay High Court (Original Side) Rules permits intervention in the admiralty suit by any person who has interest in the property against which the suit in rem is brought and which is under arrest, or any money representing its sale proceeds brought in court, but who is not a defendant to the suit. If it is the case of a party that it is aggrieved by any arrest of property or sale of property in pursuance of such arrest, Pg 40 of 42 sg/sat nms2202-15.doc and it has a claim against the property or the sale proceeds, it must intervene in the very suit. Only then it is entitled to seek justice as between itself and the plaintiff in respect of the arrest or the sale, as the case may be. This right of the party, as explained above, is different from its right to sue in contract or tort, i.e. for wrongful seizure in breach of contract or tort, as the case may be. In any such independent action it sues on an actionable wrong committed by the plaintiff in the arrest action and not on the undertaking furnished by the latter in his own action.