John Beaumont, Kt., C.J.,
1. In this case the plaintiff in Suit No. 3989 of 1924 has applied for an order for execution under Rule 387 of the Rules of the Bombay High Court (Original Side). That rule and the preceding Rule 386 are in these terms. Rule 386 provides:
The Sheriff shall ordinarily execute the process of the High Court in the Island of Bombay, Cross alias Gibbet and Butcher's Islands and the coasts and harbours thereof, respectively, and shall not be compellable to execute process beyond the said limits.
2. Then Rule 387 provides:
Upon occasions when it shall be necessary to execute process beyond the said ordinary limits, the Sheriff shall grant his special warrant to such person or persona as a Judge shall direct; and in order to prevent any improper use or abuse of the process of the Court, the party issuing the same shall give such security or indemnity for its proper execution as the Judge shall direct.
The plaintiff in this suit obtained a money decree for a sum of over one lakh of rupees in 1925, and she seeks to execute that decree by obtaining the appointment of a special bailiff to execute the decree anywhere within the limits of the Bombay Presidency. The matter has been referred to a special bench because it has been doubted whether Rule 387 was validly made, the suggestion being that the High Court had no jurisdiction to make such a rule. The application is an ex parte one, and Mr. Vakeel has ably argued the case on behalf of the applicant. The learned Advocate General, on the instructions of Government, has been good enough to appear and support with argument the view that the rule is invalid, and we are much indebted to him, as also to Mr. Vakeel, for their assistance in the matter.
2. It appears from the researches of Mr. Vakeel that Rules. 386 and 387 have existed substantially in their present form, at any rate since 1852, and probably since 1825. The power conferred by Rule 387 was acted upon by this Court down to the year 1922, when a case Abdul Latiff Usman v. Vallimahomed Haji Gani (1922) O.C.J. Suit No 3700 of 1920, came before Mr. Justice Crump, in which a debtor had been arrested in Rangoon under a writ of attachment issued under Rule 387. Mr. Justice Crump took the view that there was no power in the High Court to direct the arrest of the judgment-debtor in Rangoon, and he expressed the opinion, which was not necessary for the decision of the case, that the High Court could not direct the arrest of a debtor outside the limits of the ordinary original jurisdiction. We are only concerned in this case with an application for the issue of a writ of attachment against a debtor within the Bombay Presidency.
3. The powers of this Court are conferred by the amended Letters Patent of 1865. But, as those Letters Patent refer back to the jurisdiction of the Supreme Court, it is necessary to notice shortly what the relevant powers of the Supreme Court were. The Supreme Court was established by Charter of 1823 granted pursuant to an Act passed in the same year. The jurisdiction of the Court is dealt with in a clause, the side note of which is, 'The Jurisdiction of the Court defined.' It is not very easy at the present time to say exactly what the jurisdiction of the Court under that clause was, nor is it necessary to do so. It may be paraphrased, I think, with sufficient accuracy for the present case by saying that the jurisdiction extended first to European British subjects resident in the territory subject to the Government of Bombay, i.e., roughly the Presidency of Bombay; secondly, to all British subjects, whatever exactly that expression meant in 1823, where the cause of action arose in the Presidency of Bombay or in allied States; and, thirdly, to employees of the Company or the Crown. So that, undoubtedly, the jurisdiction extended to suits between parties who might not be resident in the island of Bombay. Then the matter of execution is also dealt with by the Charter. In a clause the side note of which is 'Provision as to Sheriff,' it is provided that a Sheriff should be appointed by the Governor. Then in a succeeding clause the side note of which is 'Court to fix limits, beyond which the Sheriff is not bound to execute Process, and provision to execute Process beyond such limits', it is provided-
The Supreme Court of Judicature at Bombay shall fix certain limits, beyond which the said Sheriff shall not be compelled or compellable to go in person or by his officers or deputies, for the execution of any process of the said Court, And upon occasions where the process of the said Court shall be to be executed in any place or places beyond the said limits so to be fixed, We grant, ordain and direct that the Chief Justice, or one of the said Puisne Justices, shall, by order, subject to the revision and control of the said Court, or the said Court, shall, upon motion, direct by what person or persons, and in what manner, such process shall be executed, and the terms and conditions which the party issuing the same shall enter into, in order to prevent any improper use or abuse of the process of the Court: And the said Sheriff shall, and he is hereby required to grant his special warrant of deputation to such person or persons as the said Chief Justice, or one of the Puisne Justices, or the said Court, may direct, for the execution of such process.
So that, by that clause a direct power is conferred upon the Supreme Court to execute its orders outside the special limits to which the Sheriff might be required to go by means of a special officer to be appointed under the directions of the Court, and it was under that power that a rule in the terms of the present Rules. 386 and 387 was passed, which rule carried out exactly what the clause of the Charter enabled the Court to do, by fixing the limit, roughly the island of Bombay, for ordinary execution by the Sheriff, and directing how execution outside that limit was to be effected. Then the next matter to consider is the High Courts Act of 1861, under which this High Court was established. Clause 8 of that Act provides that upon the establishment of a High Court in the Presidency of Bombay the Supreme Court shall be abolished. Then in Clause 9 it is provided that each of the High Courts to be established under the Act shall have jurisdiction original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty may by Letters Patent grant or direct, subject, however, to such directions and limitations as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency-towns as may be prescribed thereby. So we have to look at the Letters Patent to see what limits were imposed on the original civil jurisdiction. The original Letters Patent of 1862 were repealed by the Amended Letters Patent of 1865, to which only it is necessary to refer. Clause 11 of the amended Letters Patent provides:
The said High Court of Judicature at Bombay shall have and exercise ordinary original civil jurisdiction within such local limits as may, from time to time, be declared and prescribed by any law made by the Governor in Council, and until some local limits shall be so declared and prescribed, within the limits of the local jurisdiction of the said High Court of Bombay at the date of the publication of these presents, and the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.
There was a similar clause in the original Letters Patent of 1862, which provided that except as declared by the Governor in Council the jurisdiction should be within the limits of the present local jurisdiction of the said Supreme Court at Bombay. So that, except so far as the jurisdiction is limited by order of the Governor in Council, the local limits of the jurisdiction of the High Court under the Letters Patent are the same as those of the Supreme Court of Bombay. Then Clause 12 of the Letters Patent confers jurisdiction upon the Court to hear cases of certain classes, and suits which can be heard under Clause 12 include suits between persons who may not be resident within the Presidency, for instance, a suit not relating to land where the whole cause of action arises within the local limits of the ordinary original jurisdiction of the High Court. Now the argument of the learned Advocate General is that the effect of Clause 11 is not merely not to confer upon the High Court, but impliedly to prohibit the exercise of, the power of issuing execution beyond the limits of the original jurisdiction of the High Court, which power was enjoyed by the Supreme Court. It is curious to observe that in fact no local limits for the exercise of original civil jurisdiction by this Court have been declared by the Governor in Council under Clause 11 of the Letters Patent, and that such limits have nowhere been definitely laid down. It has, however, been the practice for a great many years, probably ever since this Court was instituted, to treat the local limits of the original jurisdiction as confined to the Town and Island of Bombay except in the case of suits falling within Clause 12, and I certainly do not desire to say anything to suggest that that practice, which has been recognised expressly or by implication in many cases, could be successfully challenged at the present time. But that is not the question we have to consider. We have to consider whether an order properly made by this Court in the exercise of its original civil jurisdiction can be executed against a party outside those limits. No doubt one method of execution in such a case is conferred by Section 39 of the Civil Procedure Code, that method being to send the decree for execution to a local Court. But until that power was given, if there existed no such power as is conferred by Rule 387, this Court would have been powerless to execute its decrees against persons living outside the local limits of the ordinary jurisdiction. In my opinion, the real point we have to determine is whether there is anything in the Letters Patent which deprives this Court, which has succeeded to the powers vested in the Supreme Court, of the power, which that Court possessed under the clause of the Charter to which I have referred, of framing rules in the terms of the present Rules. 386 and 387. I can find nothing in the Letters Patent which deprives this Court of that power, either directly or by implication. In point of fact the local limits of the original civil jurisdiction are, as I have shown, not imposed by the Letters Patent, or any order of Government made there under; they are imposed by practice and a long course of decisions; but limits so imposed cannot, in my opinion, deprive this Court of the power which the Supreme Court had, and which, I think, passed to this Court, under Clause 11 of the Letters Patent, of framing rules relating to execution in the terms of Rules. 386 and 387.
4. With regard to the authorities, there is the case of Rajah of Ramnad v. Seetharam Chetty I.L.R. (1902) Mad. 120 on which Mr. Justice Crump relied, in which a division bench of the Madras High Court held that a decree passed by the Court in the exercise of its original civil jurisdiction could not be executed by a writ issued by the High Court for execution within the Madras Presidency outside the local limits of the original jurisdiction. That decision, so far as the powers of the High Court of Madras are concerned, is no doubt against the view which I take as to the powers of this Court. But we do not know whether in Madras the local Governor has exercised the power of defining the limits of the original civil jurisdiction under Clause 11 of the Letters Patent, nor do we know whether the Madras High Court has framed a rule in the sense of our Rules. 386 and 387. The case, therefore, does not really assist us. We were also referred to the decision of this Court in Gajanan v. Bhaskar : (1926)28BOMLR380 , but I read that decision as meaning only that normally the proper way to execute a decree of this Court against parties living outside the island of Bombay is by the method pointed out in Section 39 of the Code, i.e., by sending the decree for execution to a local Court. The Court, in the case referred to, did not discuss the terms of Rule 387 at all, and certainly did not in terms hold that the rule was ultra vires.
5. The only remaining question which we have to consider is, whether, on the merits, this is a case in which the power conferred by the rule should be exercised. Now, I would say that, generally speaking, the power conferred by that rule should be sparingly exercised. In normal cases the alternative method of execution conferred by Section 39 of the Code is, I think, the one to be preferred, and I would point out again that our decision does not deal with a case of execution outside the limits of the Bombay Presidency. Even if the terms of the rule could be held to justify an order for execution outside those limits, such an order ought obviously only to be made in the rarest cases, because when the decree of a Court is sought to be executed in territory under an alien Government, practical difficulties may arise. In the present case the evidence is that the plaintiff obtained a decree for a large sum in 1925, and to a great extent that decree remains still unexecuted. The evidence further shows that attempts have been made to execute it by getting the decree transferred to the local Court at Ahmedabad, where the defendant resides, but the defendant has succeeded in finding out that the decree was going to be transferred and has, in consequence, left the jurisdiction of the local Court. The result of that is that he has kept the plaintiff out of her money ever since 1925. I think, therefore, that on the merits this is a, case in which we ought to exercise the power conferred upon us by Rule 387 and to accede to the request of the plaintiff.
6. With great deference I have come to a contrary opinion. Section 129 of the Civil Procedure Code empowers this High Court to frame rules provided such rules are not inconsistent with the Letters Patent. Clause 11 of the Amended Letters Patent of 1865 by which we are governed provides as follows:
And we do hereby ordain that the said High Court of Judicature at Bombay shall have and exercise ordinary original civil jurisdiction within such local limits as may, from time to time, be declared and prescribed by any law made by the Governor in Council, and until some local limits shall be so declared and prescribed, within the limits of the local jurisdiction of the said High Court of Bombay at the date of the publication of these presents, and the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.
The words in this clause on which I would like to lay stress are, 'until some local limits shall be so declared and prescribed, within the limits of the local jurisdiction of the said High Court of Bombay at the date of the publication of these presents '. It is common ground that the Governor in Council has not prescribed any limits to the local jurisdiction of this High Court as contemplated by Clause 11 of the Letters Patent. Under these circumstances our jurisdiction would be the jurisdiction which the Supreme Court exercised until such limits are determined by the Governor in Council. It appears from the Charter of the Supreme Court that that Court exercised a two-fold jurisdiction. One was a general, or what I would, call, a local jurisdiction, which applied to all inhabitants of Bombay. The other jurisdiction was in the nature of an extra-territorial jurisdiction over the persons of certain classes of individuals. These individuals are thus enumerated in the Charter. The jurisdiction is to extend to-
all such persons as have been heretofore described and distinguished, in our Charters of Justice for Bombay, by the appellation of British subjects, who shall reside within any of the Factories subject to or dependent upon the Government of Bombay; and that the said Court shall be competent and effectual, and shall have full power and authority to hear and determine all suits and actions whatsoever against any of our said subjects, arising in territories subject to, or dependent upon, or which hereafter shall be subject to or dependent upon the said Government, or within any of the dominions of the Native Princes of India in alliance with the said Government, or against any person or persons who, at the time when the cause of action shall have arisen, shall have been employed by or shall have been directly or indirectly in the service of the said United Company, or any of the subjects of Us, our heirs or successors.' (Clause 23, Supreme Court Charter, 1823.)
The word 'subjects' in this clause applies to European British subjects and not to the natives of India, and the jurisdiction to be exercised was over all European British subjects in the Presidency of Bombay, whether they were residing in Bombay or not. It also applied to servants of the East India Company or of any of the European British subjects wherever they might reside. The residence in that case is not confined to the Bombay Presidency. In the other class, the jurisdiction is to be exercised over the inhabitants of Bombay, and by that I understand all inhabitants, whether they are European British subjects or not. Clause 11 of the Letters Patent has, in my judgment, by necessary implication, abolished the jurisdiction which the Supreme Court exercised in respect of the limited class of individuals who are specified in one of the clauses of the Charter to which I have referred, and the jurisdiction which survives for the purposes of Clause 11 of the Letters Patent is only the local jurisdiction in respect of the inhabitants of Bombay.
7. The genesis of our present Rule 387 is this. Under the Charter of the Supreme Court the Supreme Court was authorized to define the limits within which the Sheriff appointed under the Charter, could be compellable to execute processes, and also to provide for the manner in which processes might be executed outside those limits. In pursuance of the powers so conferred the Supreme Court framed a rule in the year 1825 which appears as Rule 55. That rule is as follows:
The ordinary limits within which the Sheriff shall execute the process of the Court shall include the Islands of Bombay, Salsette, Caranjah, Colaba, Old Woman's and Butcher's Islands, and the coasts and harbours thereof respectively, and upon occasions when it shall be necessary to execute the process of the Court beyond the said ordinary limits, the Sheriff shall grant his special warrant to such person or persons as the Court or a Judge shall direct; and in order to prevent any improper use or abuse of the process of the Court, the party issuing the same shall enter into a bond with two sureties (who shall be persons liable to the jurisdiction of the Court) to the Prothonotary of the said Court, and his successors, in the penal sum of Rupees ten thousand, conditioned that such person or persons, to whom such special warrant is to be granted as aforesaid, do not nor shall molest or aggrieve any person or persons under or by pretence of the said special warrant, nor in any way make any improper use or abuse of the said process; and any person or persons, being aggrieved under or by pretence of such special warrant, shall or may apply to the said Court, or the Chief Justice, or Puisne Justices, to be permitted to use the name of the Prothonotary to sue on the said bond, upon indemnifying the Prothonotary from all costs and charges to be incurred thereby, and upon such other terms and conditions as the Court, or said Chief Justice, or Puisne Justices, shall direct.
In that rule it is to be noted that the limits of the Sheriff's power to serve process personally are confined to the Islands of Bombay, Salsette, Caranjah, Colaba, Old Woman's and Butcher's Islands, and the coasts and harbours thereof respectively, and it is provided that upon occasions when it shall be necessary to execute the process of the Court beyond the said ordinary limits, the Sheriff shall grant his special warrant to such person or persons as the Court or a Judge shall direct, and in order to prevent any improper use or abuse of the process of the Court, the party issuing the same shall enter into a bond with two sureties, etc. The latter part of this rule appears to be ultra vires of the power conferred under the Charter to the extent that it does not confine the execution of such process to the class or classes of persons who are set out in the Charter. Our present Rules. 386 and 387 have come down to us from the original Rule 55 with certain alterations. Rule 386 defines the extent of the limits within which the Sheriff could be compelled to execute process personally. Those limits are set up as follows:
The Sheriff shall ordinarily execute the process of the High Court in the island of Bombay, Cross alias Gibbet and Butcher's Islands and the coasts and harbours thereof, respectively, and shall not be compellable to execute process beyond the said limits.
Under Rule 387:
Upon occasions when it shall be necessary to execute process beyond the said ordinary limits, the Sheriff shall grant his special warrant to such person or persons as a Judge shall direct, and in order to prevent any improper use or abuse of the process of the Court, the party issuing the same shall give such security or indemnity for its proper execution as the Judge shall direct.
In my opinion Rule 387 is ultra vires of Clause 11 of the Letters Patent. The expression 'local limits of the ordinary original jurisdiction of this High Court', although it has not been defined by any statute, is well-known, and has been acted upon in a series of decisions to which the learned Advocate General has called our attention. In the case of Narayan Vithal Samant v. Jankibai I.L.R. (1915) Bom. 604 : 17 Bom. L.R. 655 a full bench of this High Court has referred to what the local limits of the ordinary civil jurisdiction of this High Court are. Mr. Justice Batchelor in delivering the judgment of the majority observes (p. 621):
But, by Clauses 11 and 36 of the Letters Patent and Rule 62 of the Original Side Rules of this Court, the local jurisdiction of the learned Judge wa3 confined to the Town and Island of Bombay.
In an analogous case to the present, where the question before the Court was the validity of the attachment of an immoveable property outside the local limits of this Court, a division bench has held in Gajanan v. Bhaskar : (1926)28BOMLR380 that such proceedings should have been taken under the provisions of Section 39 of the Civil Procedure Code. The High Court of Madras in a similar case to the present, Raja of Ramnad v. Seetharam Chetty I.L.R. (1902) Mad. 120 has come to the conclusion that Clause 11 of the Letters Patent has abrogated the wider jurisdiction which the Supreme Court could exercise. I respectfully agree with the conclusion arrived at in that case. Having regard to the view to which I have given expression I would refuse this application.
8. I agree with the judgment delivered by my Lord the Chief Justice, and I have nothing to add.
9. Per Curiam. Order in the form annexed to the application. Costs in the application.