1. This is an application for the execution of the decree passed in this suit. The suit was filed in 1931 by the plaintiff firm against Mimraj Puranmull, described as a firm in the cause title of the plaint. It was for the recovery of Rs. 22,727-0-6 due to the plaintiff firm in respect of certain dealings and transactions in shel lac, Kiri lac and other lac products. The writ of summons in the suit was, with the leave of this Court under Order 30, Rule 3, Civil P.C., served on Mimraj, Puranmull, Hardattrai and Jodhraj as four of the partners of the defendant firm. No appearance having been entered by any of the four partners served as aforesaid or by any other partner, the suit came up for hearing as an undefended suit and an ex parte decree was passed on 14-12-1931 for Rs. 22,727-0-6 with costs and interest on judgment at 6 per cent, per annum. The costs of the plaintiff firm having been taxed an allocatur was issued on 23-5-1932 for Rs. 316-12-0.
2. On or about 21-6-1935 the decree was transmitted by this Court to the Court of the District Judge of Purulia for execution against the four partners served as aforesaid. In the meantime one of these four partners, namely Hardattrai, applied to the District Judge of Purulia for adjudging himself an insolvent. The plaintiff firm opposed that insolvency application and the same was eventually dismissed. It is alleged that the said four partners requested Baijnath Prosad, the representative of the plaintiff firm, not to execute the decree then and assured him that they would pay up the plaintiff firm's dues as soon as they would realise the heavy sums due to them by their debtors. This story is, however, denied by Mimraj, one of the said partners, in his affidavit filed herein. Bo that as it may, no steps having been taken at Purulia for execution of the decree the decree was returned to this Court on 5-9-1938 with a certificate under Section 41, Civil P.C.
3. On 14-12-1943, the plaintiff firm applied before the Master of this Court for execution of this decree on a tabular statement praying for execution of the decree against the four partners who had been served with the writ of summons as partners. The plaintiff firm prays that the said sum of Rs. 22,727-0-6 with interest thereon at 6 per cent, per annum from 14-12-1931, until realisation as well as the costs amounting to Rs. 346-12-0 together with interest thereon at 6 per cent, per annum from, 23-5-1932 (being the date of the allocatur) until realisation together with the costs of the present application for execution be realised by executing the decree against the persons of the said four partners, i.e., by their arrest and detention in civil prison.
4. This tabular statement was also supported by an affidavit of Baijnath Prosad Sinha, an assistant in the employ of the plaintiff firm, affirmed on 14-12-1943. After stating the history of this case up to the return of the decree from the Purulia Court to this Court, Baijnath Prosad avers that in the beginning of November 1943 he met Hardattrai on two occasions in the Burra Bazar area and that on each of those occasions the latter informed him that the defendants could not realise their dues but expected to do so and that they would pay up the plaintiff firm's dues under the decree shortly. Baijnath Prosad further 'states that Hardattrai told him that he, Hardattrai, had come to Calcutta on business and was residing at No. 12/3 Madan Boral Lane in Calcutta and would stay there for at least 3 months. Baijnath Prosad also states that he had on several occasions gone to Jhalda where the 4 partners ordinarily reside and carry on business and found them carrying on extensive businesses under three several names which are mentioned in his affidavit. Baijnath Prosad concludes by saying that the said four partners are living in luxury and that they own horses, carriages and cattle and are men of means but are yet evading payment of the plaintiff firm's just dues under the decree.
5. Upon the application being made before him the Master directed notice to issue under Order 21, Rule 22(1)(a) and Rule 37, Civil P.C. Accordingly a notice was issued over the signature of the Master and under the seal of this Court calling upon the said 4 partners to appear before the Judge in Chambers on 11-1-1944 to show cause why the decree herein should not be executed against them and why they should not be committed to jail in execution of the said decree. This notice has been served on the said 4 partners at Jhalda by registered post under order of Court after an unsuccessful attempt to serve Hardattrai at No. 12/3 Madan Boral Lane, Calcutta.
6. Mimraj, one of the 4 partners against whom execution is sought, appeared 'under protest' and filed an affidavit in opposition to the present application. In this affidavit Mimraj states that Mimraj Puranmull is the name of a Hindu joint family business started in 1927 by his father Jodhraj as karta and the plaintiff firm had dealings with that business with full knowledge that it was a joint family business and that, in the circumstances, the suit could not have been filed in the name of that business-and the ex parte decree is a nullity and is inoperative in law. He denies having ever requested Baijnath Prosad not to execute the decree or that Baijnath Prosad met Harduttrai in Burra Bazar and avers that Harduttrai ordinarily resides at Jhalda and never came to Calcutta in November 1943. He denies that the joint family carries on the business at Jhalda or that the members thereof live luxuriously or are men of means. None of the other respondents filed any warrant of attorney or any affidavit in opposition.
7. After several adjournments the application came up for hearing before me in Chambers on 17-2-1944. Mr. G.P. Kar appearing in support of this application opened the application and contended that this Court, as the Court executing the decree, could not go behind the decree which, on the face of it, was against a firm and in any case the suit was properly filed under Order 30, Rule 10 and cited the case in Jamunadhar Poddar v. Jamnaram Bhakat : AIR1944Cal138 . Mr. A.C. Sircar stated that he had not seen that case and asked for a short adjournment to consider the position. The application was accordingly adjourned till 22-2-1944.
8. On the last mentioned date Mr. A.C. Sircar frankly stated that in view of the decision in Jamunadhar Poddar v. Jamnaram Bhakat : AIR1944Cal138 he could not argue that the decree was a nullity. On this statement being made I was about to set down this application for trial on evidence under Order 21, Rule 40, Civil P.C., as to the means of the i partners but Mr. Sircar stated that he had another preliminary point, a decision on which in his favour will, obviate the necessity for any trial on evidence. He filed another warrant of attorney on behalf of the other 3 partners 'under protest'. No affidavit in opposition has, however, been filed by any of those persons.
9. Mr. Sircar formulated his preliminary point in this way : It was clear from paras. 6 and 9 of the affidavit of Baijnath Prosad filed in support of the tabular statement that all these 4 partners ordinarily resided and carried on business in Jhalda in the district of Manbbum which is outside the jurisdiction of this Court. The persons against whom execution is sought being thus outside the jurisdiction, the proper course for the decree-holder was to get the decree transmitted to the Court within the jurisdiction of which the judgment-debtors ordinarily resided or carried on business or had properties and there to apply for execution against the person or property of those judgment-debtors. This Court has, in the circumstances, no jurisdiction to entertain this application at all.
10. Mr. G.P. Kar strongly objected to this point being raised at this stage, and particularly when no such point had been taken in the affidavit of Mimraj and after several adjournments had been obtained without indicating any such objection. As the point arises on the allegations in the affidavit used by the plaintiff firm and as the latter has not been prejudiced by this point not having been taken earlier, for the application having been made on the last date of limitation another application by the plaintiff firm in any other Court would have been out of time, even if the point had been taken on the first returnable date, I allowed Mr. Sircar to raise this point. I ought, however, to say that I do not think that the fact that the warrant of attorney was 'under protest' has any bearing on this point, for I think it was meant to be a protest only against the execution of the decree which was alleged to be a nullity by reason of its having been passed against a joint family business.
11. Mr. G.P. Kar also stated that if necessary he was prepared to prove on evidence that the 4 partners used to carry on business in Calcutta and for such purpose used to come to Calcutta off and on. He, however, did not wish to file any affidavit in reply or amend the tabular statement on the first affidavit of Baijnath Prosad. At one time I thought that I should set down this application for trial of both the questions, namely that of jurisdiction and that of the means of the 4 partners. On a consideration of the matter, however, it seems to me that logically the correct legal position is this : When a proper application is on the file and the Court has jurisdiction to entertain the same then the Court issues a notice under Order 21, Rule 37 and then if the judgment-debtors appear the Court proceeds under Order 21, Rule 40. If however, the Court has no jurisdiction at all to entertain the application, then no notice can be issued under B. 37 and there can be no question of proceeding under Rule 40. Mr. Kar contended that notice under Rule 87 having been issued this Court has no option but to proceed under Rule 40 and hear such evidence as may be adduced by the decree-holder in support of his right to execute the decree. I do not think that this extreme contention of Mr. Kar is right. If the Court has no jurisdiction to entertain the application at all, no good purpose can be served by prolonging proceedings which are void ab initio for want of jurisdiction and the Court cannot be compelled to continue the proceedings even after it is convinced that the whole proceedings will be a nullity for want of jurisdiction. The initial infirmity will vitiate all further proceedings. I therefore, think it right to deal with this point of jurisdiction on the materials before me. Mr. Kar, as I have said, has not desired to file a further affidavit. The affidavit of Baijnath Prosad, therefore, is the only material now before me on which the point is founded. I think it is fairly clear, on that affidavit, that all these four persons ordinarily reside and carry on business at Jhalda outside the jurisdiction of this Court. This being the position on facts disclosed in the affidavit, the question is, whether, in those circumstances, this Court has any jurisdiction to entertain this application and order execution to issue as prayed.
12. Mr. Sircar submitted that the ordinary original civil jurisdiction of this Court, as prescribed by Clause 11, Letters Patent, is confined to certain territorial limits and it cannot, in execution of a decree, issue any writ of arrest against persons who ordinarily reside or carry on business outside that jurisdiction or isue any writ of attachment or order any sale of property out-side that jurisdiction. He contended that territorial jurisdiction is a condition precedent to a Court executing a decree. In support of this contention Mr. Sircar referred me to the cases in Premchand Dey v. Mokhoda Debi ('90) 17 Cal. 699 (F.B.), Ambika Ranjan Mazumdar v. Manikganj Loan Office Ltd. : AIR1929Cal818 and Haridas Basu v. National Insurance Co. Ltd. : AIR1932Cal213 . Mr. Sircar next argued that whenever the Legislature intended to confer any extra territorial jurisdiction it did so expressly and drew my attention to Section 136 of the Code and pointed out that that section was in terms, made inapplicable to the case of an execution of a decree. Prom these circumstances it is to be inferred that the Legislature intended that the Court should not have such extra-territorial jurisdiction in the matter of execution of decrees. Mr. Sircar finally cited the cases in Rajah of Ramnad v. Seetaram ('02) 26 Mad. 120 and H.H. the Chimana Bai Saheb Maharani Gaekwar of Baroda v. Kasturbhai Manibhai 21 A.I.R. 1934 Bom. 225 for the proposition that a Court cannot, in the absence of any express provision of the law in that behalf, issue a writ of arrest for apprehending the judgment-debtor who was outside its territorial limits. He pointed out that had there been no express rule such as there was in the Bombay case the decision in that case would have been different.
13. Mr. G.P. Kar argued as follows: There was no suggestion that this Court had no jurisdiction to entertain the suit when it was filed. Once it is admitted that the Court had jurisdiction to entertain the suit there can be no question that the decree was passed by a competent Court. If the decree was passed by a competent Court the judgment-debtors became amenable to all processes of execution that could be issued by the Court passing the decree or by the Court to which the decree was sent for execution and no question of Clause 11 or Clause 12, Letters Patent could arise at any subsequent stage. The only question is what are the powers of the Court passing the decree in the matter of the execution of the decree. He then referred me to Sections 38 and 39, Civil P.C., and pointed out that reading the two sections together it may be said that there are some territorial limits of the jurisdiction of the transferee Court, for the decree can be transferred to another Court for execution only when the judgment-debtors reside or carry on business or have property within the jurisdiction of the transferee Court; but no such, limit is imposed on the Court which passed the decree. The argument is that once a suit is filed in a Court having jurisdiction to entertain it and once a decree is passed in such suit the Court passing the decree can execute its own decree against the judgment-debtors wherever they may be residing or wherever their properties may be situate. It also has an option, for the sake of convenience to transfer it to some other Court within wbose jurisdiction the judgment-debtors reside or carry on business or have properties. He then referred me to Section 51 and Order 21 Rule 37 and pointed out that no territorial limit was imposed by those provisions of the Code. In any event, this Court can issue a writ of arrest even though judgment-debtors are outside the jurisdiction of the Court provided it is executed within jurisdiction when the judgment-debtors happen to be there. If they do not come within the jurisdiction then the writ will not be executed.
14. It is not necessary for me, on this application, to discuss the limits of the power of the Court which passed the decree in the matter of the execution of the decree by attachment and sale of properties of the judgment-debtors situate outside the local limits of the jurisdiction of this Court. I need only say that the point is covered by the first three cases cited by Mr. Sircar one of which is a decision of a Full Bench of this Court. In this application I am concerned only with the question whether this Court, which passed the decree, can order the issue of a writ of arrest in execution of that decree when, as I find, the judgment-debtors do not ordinarily reside or carry on business within the local limits of its ordinary original civil jurisdiction. I do not, however, think that the last two eases cited by Mr. Sircar conclude the matter now before me. Those two cases were concerned with the question whether the High Court (in one casa the Madras High Court and in the other the Bombay High Court) had any jurisdiction to send out its bailiff or special officer outside its jurisdiction to execute a writ of arrest issued by the High Court in execution of a decree by apprehending the judgment-debtor at his place of residence outside the local limits of the ordinary original civil jurisdiction of the High Court. In other words, the question in those two eases was-as to the powers of the High Court in the mattes of actual execution of its process outside jurisdiction. The question whether the High Court had jurisdiction to direct the issue of a writ oil arrest in execution of a decree to be executed within its local limits as and when the judgment-debtor, who was resident outside, came within those local limits, did not arise or call for any decision in these two cases. Nor I think that the cases dealing with the powers of this Court in executing orders for arrest and committal for contempt are in point. I am prepared to concede that, in the absence of express provision, this Court cannot, in execution of a decree passed by it, actually put its process into execution outside its local limits. I can, however, easily-comprehend a distinction between executing a writ of arrest outside the jurisdiction and issuing a writ to be executed within jurisdiction when the judgment-debtors, who are residents outside, come within the jurisdiction. I have not been referred to any authority for this proposition, namely, that this Court cannot even order the issue of a writ of arrest against judgment-debtor who are for the time being residing or carrying, on business outside those local limits, to be executed against them as and when they may happen to come within those local limits. The case of attachment and sale of property, in my opinion, stands on a somewhat different footing. The mode of attachment in execution and sale in execution prescribed by the Code necessarily require the doing of various acts at the place where the property is situate and the process of this Court may not run beyond its local limits and this position will always remain so, for the possibility of the property which is outside being, suddenly included within its jurisdiction is too remote for practical purposes. But in the case of a writ of arrest, the judgment-debtors who are now outside may easily come within the jurisdiction of the Court in the near future and the Court can then execute its own process within its own territorial limits. I do not think the decisions relating to attachment and sale of property outside jurisdiction can properly be applied to the case of issuing of a writ of arrest against the judgment-debtors who are outside the jurisdiction. In many circumstances, justice and practical expediency may urgently call for the adoption of such a course and I am not prepared to hold, unless I am obliged to do so by reason of some express provision of the law or of any clear judicial decision binding on me, that this Court has not the power to adopt such a course even if the justice of the case so demands. On looking up the authorities I find that in at least two reported cases such an order, as now prayed for, has been made even though the judgment-debtors were, at the date of the order, residing outside the jurisdiction of this Court In Krishna Prosad v. Bidya Nanda ('18) 5 A.I.R. 1918 Pat. 427 Chamier C.J. made the following observations:
The Subordinate Judge says that the decree-holder is not entitled to the issue of a warrant because the judgment-debtor does not reside within the jurisdiction of the Court. This is not a sufficient reason for refusing to issue a warrant. The District Judge says that the jurisdiction of the Court to arrest in execution is territorial only and he, therefore, dismissed the appeal. I agree with the District Judge that the jurisdiction is territorial, that is to say, that a warrant of arrest issued by the Subordinate Judge of Patna must be executed, if at all within the limits of the jurisdiction of the Subordinate Judge of Patna, but the fact that the judgment-debtor, at the time of the application, did not reside within the jurisdiction is not necessarily a sufficient reason for refusing to issue a warrant. The decree-bolder may have information that the judgment-debtor is about to come within the jurisdiction and he may apply for a warrant in order that he may arrest the judgment-debtor as soon as the latter comes within the jurisdiction. By this I must not be understood to mean that it would, be proper for the Court to issue a warrant to lie in the office for an indefinite time. A time must be fixed for the return of the warrant.
In Fatechand v. Utanmal ('26) 13 A.I.R. 1926 Sind 51, Rupchand A.J.C. observed as follows:
The second objection is equally futile. I am prepared to accede to the contention that this Court cannot arrest the defendant unless he is within the jurisdiction of this Court. No attempt is being made to arrest him outside the jurisdiction of this Court. This notice could have been dispensed with altogether and if it was issued by this Court, in order to give him an opportunity of showing cause why he should not be arrested when he is within the jurisdiction of this Court, it would appear that there are no grounds for challenging it. I, therefore, order a warrant of arrest to issue against the defendant Jhamnadas, but this warrant is to be executed within the jurisdiction of this Court and not outside.
15. On principle and on authority, therefore, I hold that this Court, in execution of its own decree, has power to issue a writ of arrest to be executed within its local limits, even though at the date of the order the judgment-debtors reside or carry on business outside those local limits. Such a writ can be executed as and when the judgment-debtors come within the jurisdiction of this Court.
16. The question whether such a writ should be issued depends, however, on whether the conditions laid down in Section 51, Civil P.C. are fulfilled. I have therefore to proceed under Order 21, Rule 40. Accordingly I direct that the matter be set down for trial on evidence as to the means of the judgment-debtors.