BALAI KUMAR SARKAR Vs. BIMAL CHANDRA SARKAR

JUDGEMENT

(1.) This Rule is at the instance of the defendant No. 1 and it is directed against Order No. 2 dated February 16, 1977 of the Subordinate Judge, 4th Court, Alipore. The suit out of which this Rule arises has been instituted by the plaintiff-opposite party No. 1 against the petitioner and others for the recovery of the sum of Rs. 38, 951.10. The opposite party No. 1 filed an application under Order 38, rule 5 of the Code of Civil Procedure for attachment before judgment, inter alia alleging therein that the defendants were avoiding payment of the plaintiff's dues and with intent to obstruct or delay the execution of the decree that would be passed in the suit against the defendants, they were about to dispose of their assets and had removed and/or had been removing their property form the local limits of the jurisdiction of the Court. Further, it was alleged that the defendants were trying to receive payment of the money from the Additional Chief Engineer, Bandel Thermal Power Station payable to the firm "Sarkar & Sarkar" of which the petitioner is the sole owner, in respect of the construction of the Training Institute-cum-Trainees Hostel at the said Power Station. By the impugned order, the learned Subordinate Judge directed issue of notices upon the defendants and also passed a conditional order of attachment of the sum of Rs. 41,000/- lying in the hands of the Additional Chief Engineer of the Bandel Thermal Power Station which is admittedly outside the jurisdiction of the Court of the learned Subordinate Judge.

(2.) The principal question that is involved in this Rule is whether an attachment before judgment can be made of a property situate outside the jurisdiction of the Court directing such attachment. Order 38 rule 5 of the Code of Civil Procedure, 1908 is as follows :

(3.) It is contended by Mr. Mukul Prakash Banerjee, learned Advocate appearing on behalf of the petitioner, that a Court has no jurisdiction to direct attachment of property situate beyond its territorial jurisdiction. In support of this contention, he had placed reliance on two decisions of this Court by the same Bench, namely, Begg, Dunlop & Co., v. Jagannath Marwari, 16 C.W.N. 402 and Surendra Nath Goswami v. Bansi Badan Goswami, 22 C.W.N. 160. In the first mentioned case, the question that came up for consideration before the Bench was whether it was competent for a Court, in execution of a decree for money, to attach at the instance of the decree-holder a debt payable to the judgment-debtor by a non-resident outside the jurisdiction. In that case, the learned Subordinate Judge held that, as in the case of an attachment before judgment, the writ could be issued in respect of properties outside jurisdictions, the same doctrine ought to be applied to cases of attachment in execution proceedings. Though Sir Ashutosh Mookerjee who delivered the judgment of the Bench, observed that there was no analogy between the two classes of cases, yet his Lordship was not inclined to accept the view that an attachment before judgment could be made by a Court of a property situate outside its jurisdiction. His Lordship referred to a number of decisions laying down that attachment before judgment could not be made by a Court of a property situate outside the jurisdiction. Those decisions are Balaram v. Solano, 8 B.L.R. 335 (1872); Kedar Nath v. Luchman, 1 C.L.R. 336 (1878); Krishnasami v. Engel, I.L.R. 8 Mad. 20 (1884); Raja v. Jakibai, 5 Bom. L.R. 570 (1903); Dawood v. Moona, P.J.L.B. 56 (1894); Pannu v. Sathappa, 1 L.B.R. 310 (1902); Siva Swami v. Soleman, 3 L.B.R. 255 (1907) and Kin Kin v. Nga Kyaw, U.B.R. 13 (1907). Of the above decisions, except the first two, the rest were under the Code of Civil Procedure, 1882. The corresponding provisions for attachment before judgment in the Code of 1882 were sections 483 and 484 which are as follows :