BEGG, DUNLOP AND CO Vs. JAGANNATH MARWARI

JUDGEMENT

(1.) The Court is invited in this Rule to consider the legality of an order, by which the Subordinate Judge has directed attachment of a debt payable outside his jurisdiction. The circumstances under which the attachment has been made have hot formed the subject of controversy before us. The decree-holder, opposite party, one Jagannath Marwari, held a decree for money against one Rowland Hill, now deceased. Upon the death of the judgment- debtor, he sought to enforce the decree against his widow Annie Hill, as executrix to the estate of her husband. It appears that Rowland Hill was entitled obtain a large sum of money from Messrs. Begg, Dunlop. & Co. and Messrs. Williamson, Magor & Co. two firms of merchants carrying on business in the town of Calcutta. The decree under execution had been made by the Court of the Subordinate Judge of Burdwan, and the application for execution had, in the usual course, been presented to that Court. The decree-holder next applied for an order of attachment of is sum of Rs. 6,750 out of the amount alleged to be due to the judgment-debtor from the two firms just mentioned. The Subordinate Judge thereupon issued a prohibitory order under Rule 46 of Order XXI of the Code of 1908, which was served upon the two firms on the 13th August, 1910. The firms filed an objection against the prohibitory order, amongst others on the ground that the Burdwan Court had no jurisdiction to attach the money in their hands, as they carried on business in Calcutta and the debt was also payable outside the jurisdiction of the Court. The Subordinate Judge, on the 19th September, 1910, overruled this objection, and held that he had power to issue a prohibitory order, under Rule 46, beyond the local limits of his jurisdiction. We are now invited to set aside this order, on the ground that the prohibitory order was beyond the competency of the Court, and that the Subordinate Judge had exercised a jurisdiction not vested in him by law. In support of the Rule, reliance has been placed upon the cases of Abdul Gafur v. W.J. Albyn (1903) I.L.R. 30 Calc. 713, Rango Jairam v. Bal Krishna (1887) I.L.R. 12 Bom. 44 and Sayad Khan v. Davies (1903) I.L.R. 28 Bom. 198. Reference has also been made to the cases pf Moonshee Hossain Alli v. Ashotosh Gangoolly (1878) 3 C.L.R. 30 and Parbati Charan v. Panchanad (1884) I.L.R. 6 All. 243. In answer to the Rule, on the other hand, reliance has been placed upon the 1 case of In re Hollick (1868) 2 B.L.R. 108 : 10 W.L. 447. It may be conceded that the observations of the learned Judges, who decided the case last mentioned, do tend to support the contention of the decree-holder, that it was competent to the Subordinate Judge to issue a prohibitory order upon a person, resident outside the jurisdiction of his Court, restraining him from paying a debt due to the judgment-debtor of the execution-creditor. This view, however, has not been accepted in the other cases, upon which reliance is placed by the petitioner, and in the case of Abdul Gafur v. W.J. Albyn (1903) I.L.R. 30 Calc. 713 the Court declined to follow the decision in In re Hollick (1868) 2 B.L.R. 108 : 10 W.R. 447. Under these circumstances, and in view of the fact that the decisions mentioned turn upon the construction of the Codes of 1859 and 1882, it is incumbent upon the Court not merely to examine the provisions of the Code of 1908, which alone are applicable to the case before us, but also to consider the question as one of principle.

(2.) Section 38 of the Civil Procedure Code of 1908 provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 39 specifies the circumstances under which the Court, which passed the decree, may, on the application of the decree-holder, a send it for execution to another Court. Clause (a) of this section provides that a decree may be transferred, if the person against whom the decree has been passed actually and voluntarily resides within the local limits of the jurisdiction of the Court to which the decree is sent for execution. Clause (6) provides that a decree may be transferred, if the judgment-debtor has not property within the local limits of the jurisdiction of the Court which passed J the decree sufficient to satisfy such decree, and has property within the local limits of the jurisdiction if the other Court. Clause (c) deals with the case of a decree for the sale or delivery of immovable property situated outside the local limits of the jurisdiction of the Court which passed it. These provisions of Section 38, read along with those of Section 39, plainly indicate the acceptance by the Legislature of the general principle that no Court can execute a decree in which the subject-matter of the suit or of the application for execution is property situated entirely outside the local limits of its jurisdiction. This elementary principle was recognised by a Full Bench of this Court in Prem Chand v. Mokhoda (1890) I.L.R. 17 Calc. 699, 703. It is needless for the purposes of the present case to formulate the exceptions to this rule; it is sufficient to indicate that, in cases of decrees for sale of mortgaged property, an exception has been recognised: Maseyk v. Steel (1887) I.L.R. 14 Calc. 661, Kartick Nath Pandey v. Tilukdhari Lall (1888) I.L.R. 15 Calc. 667, Gopi Mohan v. Doybaki (1891) I.L.R. 19 Calc. 13 Tincouri Debya v. Shib Chandra Pal (1894) I.L.R. 21 Calc. 639 Latchman v. Maddan Mohun (1880) I.L.R. 6 Calc. 513 and Jahar v. Kamini Debi (1900) I.L.R. 28 Calc. 238. An exception has also been recognised by the new Code in cases of attachment of salaries of public officers under Rule 48, and of sale of entire estates situated within the local limits of the jurisdiction of more than one Court, under rule 3 of Order XXI. It is not necessary, however, as just stated, to attempt an exhaustive enumeration of all possible exceptions to the general principle. The sole question for consideration now is, whether the principle should be held inapplicable to the case of attachment of a debt payable outside the jurisdiction of the Court by a person who also resides beyond, the local limits of such jurisdiction.

(3.) Rule 43 of Order XXI provides the mode of attachment of moveable property, other than agricultural produce, in possession of the judgment-debtor: such attachment must be effected by actual seizure, and it is reasonably plain that the attachment can be so effected only when the property is within the jurisdiction of the Court. Rule 46 then provides for the attachment of moveable property not in possession off the judgment-debtor, including a debt not secured by a negotiable instrument. The attachment is to be effected by a written order, prohibiting the creditor from recovering the debt and the debtor from making payment thereof until farther orders of the Court. A copy of such order must be affixed on a conspicuous part of the Court house, and another copy sent to the debtor. It is further provided that a debtor, so prohibited, may pay the amount of his debt into Court, and such payment shall discharge him as payment to the party entitled to receive the same. The substance of the procedure, therefore, is that upon the application of the decree-holder, the Court records an order which prohibits the judgment-debtor, who is the creditor of the debtor, from recovering the debt, and also prohibits the debtor from paying the debt to his creditor. A copy of the order is published in the Court house, and another copy is sent for communication to the debtor, I am unable to hold, on principle, that it is competent to a Court to issue such a, prohibitory order upon a person, resident outside the local limits of its jurisdiction, in respect of property also beyond such local limits. If such a person disobeyed the order of the Court, and in defiance thereof made the payment, the Court would be powerless to enforce its order by proceedings in contempt. On the other hand, there is no good reason why the decree-holder should not apply for transfer of the decree to the Court, within the local limits of which the garnishee, that is, the debtor of the judgment-debtor, resides. Two objections, however, have been suggested to the adoption of such a course. It has been contended in the first place that the delay, which must necessarily take place before an order of transfer could be obtained, might prove fatal to the decree-holder, who might find that the judgment-debtor had, in collusion with his debtor, received payment of the debt sought to be attached. The obvious answer is, that the procedure of attachment under precepts, provided in Section 46 of the Code of 1908, furnishes a speedy and effective remedy. The object of a precept is to enable a decree-holder to obtain interim attachment where there is ground to apprehend that he may otherwise be deprived of the fruits of his decree. Section 46 expressly provides that, upon the application of the decree-holder, the Court, which passed the decree, may, whenever it thinks fit, issue a precept to any other Court, which would be competent to execute such decree, to attach any property belonging to the judgment-debtor and specified in the precept: and the Court, to which a precept is so sent, shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree, this provision plainly indicates that the Legislature did not intend that a Court should directly attach property beyond tile local limits, of its jurisdiction. It has been argued, in the second place, that, if the contention of the petitioners prevails, two separate orders would be required in respect of the same matter: that is, an order by the Court, which passed the decree, upon the judgment-debtor prohibiting him from recovering the debt, and an order by the Court, to which the decree has been transferred for execution, upon the debtor of the judgment-debtor prohibiting him from making payment thereof. This, in substance, was the argument which found favour with the learned Judges who decided the case of In re Hollick (1868) 2 B.L.R. 108 : 10 W.R. 447. I do not feel pressed by the weight of this contention. The course suggested does not lead to any serious inconvenience. On the other hand, if the prohibitory order is issued by the Court which made the decree, to a person beyond the local limits of its jurisdiction, the order may prove infructuous, if it is disobeyed, and the Court may find itself powerless to enforce it.