AMBIKA RANJAN MUJUMDAR Vs. MANIKGANJ LOAN OFFICE, LTD

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an order refusing to set aside the sale of certain properties in execution of a decree obtained by the respondent and purchased by him. The first objection refers to certain properties within the districts of Pabna and Rangpur. The properties were sold by the Subordinate Judge having jurisdiction in the district of Dacca. The learned Subordinate Judge has held that under Section 39, Civil P. C, the Court which passed the decree for money could sell properties belonging to the judgment-debtor situate outside its jurisdiction. He comes to that conclusion, because in Section 39 the language is that: the Court which passed a decree may send it for execution to another Court.

(2.) He held that the word "may" does not mean "shall" or "must." Having come to that conclusion he held that the Court which passed the decree could execute the decree by selling properties situate outside its territorial jurisdiction. There cannot be any doubt that this construction is not correct. Where it is necessary in execution of a decree for money to sell properties not within the local limits of the jurisdiction of the Court which passed the decree, the sale of the properties can only be effected by the Court within the beat limits of which the property is situate It is only necessary to refer to the Full Bench case of Prem Chand Dey v. Mokhoda Debi [1890] 17 Cal. 699 (F.B.) at p 703. The learned advocate for the respondent sought to support the decision of the Subordinate Judge not on the ground on which he put it and in fast be stated that that ground cannot possibly be supported but on a different ground. His argument was that these properties had been attached at the instance of the decree- holder before judgment, and that being so, under Order 38, Rule 11, Civil P. C, it was not necessary to attach these properties afresh in execution of the decree obtained by the respondent. He next referred to Order 21, Rule 64 and his argument was that the Dacca Court was the Court executing the decree because there were other properties situate within the territorial jurisdiction of the Dacca Court- He then laid stress upon the opening words of Order 21, Rule 64 namely: any Court executing a decree may order that any property attached by it and liable to sale....shall be sold.

(3.) He contended that as the Dacca Court was the Court executing the decree and the properties in question were attached by it, it can sell the properties. It was further argued in support of the contention that where a Court passes a decree on a mortgage by which the properties situated within the local limits of the jurisdiction of the Court and also those outside such local limits are mortgaged, the Court which passed the decree can sell the properties situated within both the jurisdictions. Similarly, as proper-ties were attached before judgment both within and outside the local limits of its jurisdiction, the Dacca Court might sell all the properties attached by it before judgment. This argument would imply that the effect of attachment is the same as a mortgage. But that is not so. It hag been pointed out by their Lordships of the Privy Council in the case of Moti Lal V/s. Karrabuddin [1898] 25 Cal. 179, that attachment confers no title. It only prevents a per-son from alienating the property. There is no analogy, therefore, between the case of a decree for sale of properties passed on a mortgage and a mere attachment before judgment where a decree for money is passed in favour of the plaintiff. The argument based on the wording of Order 21, Rule 64 also seems to me to be incapable of the construction which is sought to be put upon it. That rule is one of a series of rules which deals with the mode of execution of a decree by a Court having jurisdiction to execute the decree and it has no reference to the question as to the jurisdiction of the Court which should execute a decree. The question of jurisdiction must be governed by the Full Bench case of Prem Chand Dey V/s. Mokhoda Debi [1890] 17 Cal. 699 (F.B.), cited above. It is also expedient that in such a case as this the property should be sold by the Court within the territorial limits of which it is situate The disadvantage which a judgment-debtor is likely to suffer by a sale effected by a Court situated at a great distance from the property can very well be imagined. One cannot expect to find a bidder for properties situated within the districts of Pabna and Rangpur, particularly of small shares, if those properties are sold at Dacca. We are of opinion that the Dacca Court had no jurisdiction to sell the properties outside the local limits of its jurisdiction. The sale of the proper-ties within the districts of Pabna and Rangpur must accordingly be set aside.