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Dharanidhar Roy Vs. P.D. Sethi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal379
AppellantDharanidhar Roy
RespondentP.D. Sethi and ors.
Cases ReferredBegg Dunlop and Co. v. Jagannath Marwari
Excerpt:
- .....the locality of the mortgage debt. the mortgage debt is also payable at asansol where the judgment-debtor mortgagee resides, for unless a particular place be agreed upon for payment of the mortgage debt a personal tender is generally necessary: see fisher on mortgage, edn. 6, para. 1504. it is competent to a court under order 21, rule 46 to issue a prohibitory order upon a person resident outside the limits of its jurisdiction in respect of property which is within its-jurisdiction and the mortgage bond which is the property sought to be attached is within the jurisdiction of the asansol court. and it has been correctly held in the majority of the high courts in india that for the purposes of the execution a debt due to a judgment-debtor under a hypothecation bond is moveable property.....
Judgment:

Mitter, J.

1. This is an appeal from the order of the District Judge of Burdwan affirming an order of the Additional Subordinate Judge of Asansol by which he directed the attachment of a debt secured by a mortgage of immovable property in favour of the judgment-debtor. It appears that the Asansol Motor Engineering Ltd. obtained a decree against Dharanidhar Ray, a minor who was represented by his guardian ad litem Swarupini Devi and in execution of the said decree has attached a mortgage bond executed in favour of the judgment-debtor by Raja Bon Behari Singh. The attachment has been made according to the provisions of Order 21, Rule 46, Civil P.C., by a written order prohibiting the mortgagee, the judgment-debtor in this case, from recovering the mortgage debt and Raja Bon Behari Singh, the mortgagor, from making payment thereof until the further order of the Court. To this attachment the judgment-debtor through his mother, the guardian ad litem, takes exception and contends that as the mortgagor Raja does not reside within the jurisdiction of the Court which has directed the attachment and as the mortgaged property is not also situated within the jurisdiction of the said Court the attachment of the mortgage debt is illegal. This objection has been overruled by both the Courts below, hence the present appeal.

2. In this appeal it is contended that as the mortgage is a usufructuary mortgage Order 21, Rule 46 does not apply. But this contention which was faintly urged was abandoned and it is now conceded that the mortgage is really a simple mortgage. It is argued that as the mortgaged property is situate in Manbhum and as the garnishee mortgagor also resides at Manbhum the Asansol Court which is the attaching Court has no jurisdiction to issue the prohibitory order on the garnishee, and reliance has been placed in support of this contention on the case of Begg Dunlop & Co. v. Jaganath (1912) 39 Cal 104. It is said that the proper procedure is that the decree-holder should apply for the transfer of the decree for execution to the Manbhum Court, and after the decree is so transferred he should apply to the Manbhum Court to issue a prohibitory order upon the mortgagor from paying the debt to the judgment-debtor. We are unable to accept this contention. The locality of a mortgage debt is where the mortgage bond is found and it is admitted in the present case that the mortgaged bond is with the judgment-debtor who resides within the jurisdiction of the Asansol Court. In the case of New York Life Insurance Co. v. Public Trustee (1924) 2 Ch 101, Pollock, Master of the Rolls, quoted the rule of law applicable to this matter from the judgment of Lord Abinger in Attorney-General v. Biywens 4 M & W 171. Lord Abinger said this:

As to the locality of many descriptions of effects, household and movable goods, for instance, there never could be any dispute; but to prevent conflicting jurisdictions between different ordinaries, with respect to choses in action and titles to property, it was established, as law, that judgment debts were assets, for the purposes of jurisdiction, where the judgment is recorded; leases, where the land lies, specialty debts, where the instrument happens to be; and simple contract debts, where the debtor resides at the time of the testator's death.

3. A mortgage debt is a specialty debt as opposed to a simple contract debt. Lort Atkins, J., in the New York Insurance case (1924) 2 Ch 101, just referred to, pointed out that in respect of specialty debts the test has always been not the place and residence of the debtor, but the actual place where actual document constituting the specialty exists, namely, where the piece of paper, is to be found. The piece of paper, i.e., the mortgage bond in the present case, is found with the judgment-debtor in Asansol and that is the locality of the mortgage debt. The mortgage debt is also payable at Asansol where the judgment-debtor mortgagee resides, for unless a particular place be agreed upon for payment of the mortgage debt a personal tender is generally necessary: see Fisher on Mortgage, Edn. 6, para. 1504. It is competent to a Court under Order 21, Rule 46 to issue a prohibitory order upon a person resident outside the limits of its jurisdiction in respect of property which is within its-jurisdiction and the mortgage bond which is the property sought to be attached is within the jurisdiction of the Asansol Court. And it has been correctly held in the majority of the High Courts in India that for the purposes of the execution a debt due to a judgment-debtor under a hypothecation bond is moveable property within the meaning of Order 21, Rule 46, Civil P. C: see Nataraja Iyer v. The South Indian Bank of Tinnevelly AIR 1915 Mad 209.

4. The case of Begg Dunlop and Co. v. Jagannath Marwari (1912) 39 Cal 104. is distinguishable in its facts. There the decree under execution was obtained in the Court of Burdwan against the judgment-debtor residing in Burdwan and there was a debt due to the judgment-debtor from the firm of Messrs. Begg Dunlop & Co. and Williamson Maggor & Co., two firms of merchants carrying on business in the town of Calcutta; the debts being also payable in Calcutta, and in those circumstances it was held that it was not competent to 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 nonresident outside the jurisdiction. In the present case the property attached is within the jurisdiction of the attaching Court although the garnishee is resident outside its jurisdiction. In Begg Dunlop's case (1912) 39 Cal 104 both the garnishee as well as the property sought to be attached were outside the jurisdiction of the Court which directed the attachment. Besides in the Begg Dunlop's case (1912) 39 Cal 104 the debt was not a specialty debt but a simple contract debt and the locality of the simple contract debt is within the area of the local jurisdiction within which the debtor for the time being resides: see Commissioner of Stamps v, Hope (1891) AC 476. For the reasons given above we are of opinion that the conclusion reached by the Courts below is right and that this appeal must be dismissed with costs. We assess the hearing fee at two gold mohurs.

M.G. Ghose, J.

5. I agree.


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