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Balai Kumar Sarkar Vs. Bimal Chandra Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 842 of 1977
Judge
Reported inAIR1978Cal340,82CWN689
ActsCode of Civil Procedure (CPC) , 1908 - Section 136 - Order 38, Rule 5
AppellantBalai Kumar Sarkar
RespondentBimal Chandra Sarkar and ors.
Appellant AdvocateMukul Prokash Banerjee and ;Sanat Kumar Seal, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Bhaskar Ghose, Advs.
Cases ReferredSurendra Nath Goswami v. Bansi Badan Goswami (supra
Excerpt:
- .....that is involved in this rule is whether an attachment before judgment can be made of a property situate outside the jurisdiction of the court directing such attachment. order 38, rule 5 of the civil p. c., 1908 is as follows:'5 (1) where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him--(a) is about to dispose of the whole or any part of his property, or(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and palace at the disposal of.....
Judgment:

M.M. Dutt, J.

1. This Rule is at the instance of the defendant No. 1 and it is directed against Order No. 2 dated Feb. 16, 1977 of the Subordinate Judge, 4th Court, Alipore. The suit out of which this Rule arises has been instituted by the plaintiff-opposite party No. 1 against the petitioner and others for the recovery of the sum of Rs. 38,951.10. The opposite party No. 1 filed an application under Order 38, Rule 5 of the Civil P. C. for attachment before judgment, inter alia, alleging therein that the defendants were avoiding payment of the plaintiff's dues and with intent to obstruct or delay the execution of the decree that would be passed in the suit against the defendants, they were about to dispose of their assets and had removed and/or had been removing their property from the local limits of the jurisdiction of the Court. Further, it was alleged that the defendants were trying to receive payment of the money from the Additional Chief Engineer, Bandel Thermal Power Station payable to the firm 'Sarkar & Sarkar' of which the petitioner is the sole owner, in respect of the construction of the Training Institute-cum-Trainees Hostel at the said Power Station. By the impugned order, the learned Subordinate Judge directed issue of notices upon the defendants and also passed a conditional order of attachment of the sum of Rupees 41,000 lying in the hands of the Additional Chief Engineer of the Bandel Thermal Power Station which is admittedly outside the jurisdiction of the Court of the learned Subordinate Judge,

2. The principal question that is involved in this Rule is whether an attachment before judgment can be made of a property situate outside the jurisdiction of the Court directing such attachment. Order 38, Rule 5 of the Civil P. C., 1908 is as follows:

'5 (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him--

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and palace at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.'

It is contended by Mr. Mukul Prakash Banerjee, learned Advocate appearing on behalf of the petitioner that a Court has no jurisdiction to direct attachment of property situate beyond its territorial jurisdicion. In support of this contention, he has placed reliance on two decisions of this Court by the same Bench, namely, Begg. Dunlop and Co. v. Jagannath (1912) 16 Cal WN 402 and Surendra Nath Goswami v. Bansi Badan Goswami, 22 Cal WN 160: (AIR 1918 Cal 911). In the first mentioned case, the question that came up for consideration before the Bench was whether it was competent for 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 non-resident outside the jurisdiction. In that case, the learned Subordinate Judge held that, as in the case of an attachment before judgment, the writ could be issued in respect of properties outside jurisdiction, the same doctrine ought to be applied to cases of attachment in execution proceedings. Sir Ashutosh Mookerjee who delivered the judgment of the Bench, though observed that there was no analogy between the two classes of cases, yet his Lordship was not inclined to accept the view that an attachment before judgment could be made by a Court of a property situate outside its jurisdiction. His Lordship referred to a number of decisions laying down that attachment before judgment could not be made by a Court of a property situate outside the jurisdiction. Those decisions are Balaram v. Solano, (1872) 8 Beng LR 335; Kedar Nath v. Luchmun' (1878) 1 Cal LR 336; Krishnasami v. Engel, (1884) ILR 8 Mad 20; Raja v. Jankibai. (1903) 5 Bom LR 570; Dawood v. Moona, (1894) PJLB 56 ; Pannu v. Sathappa, (1902) 1 Low Bur Rule 310; Siva Sawmy v. Suleiman, (1907) 3 Low Bur Rule 255 and Kin Kin v. Nga Kyaw, (1907) Upp Bur Rul 13. Of the above decisions, except the first two, the rest were under the Civil P. C., 1862. The corresponding provisions for attachment before judgment in the Code of 1882 were Ss. 483 and 484 which are as follows;

'483. If at any stage of any suit the plaintiff satisfies the Court by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him.

(a) is about to dispose of the whole or any part of his property, or to remove the same from the jurisdiction of the Court in which the suit is pending, or

(b) has quit the jurisdiction of the Court leaving therein property belonging to him. the plaintiff may apply to the Court to call upon the defendant to furnish security to satisfy any decree that may be passed against him in such suit and, on his failing to give such security, to direct that any portion of his property within the jurisdiction of the Court shall be attached until the further order of the Court.

The application shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof,

484. If the Court, after examining the applicant and making any further investigation which it thinks fit, is satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of any decree that may be passed against him in the suit, or that he has with such intent quit the jurisdiction of the Court, leaving therein property belonging to him, the Court may require him, within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

The Court may also in the order direct the conditional attachment of the whole or any portion of the property specified in the application.'

In this connection another provision of the Code of 1882 needs to be mentioned and that was Section 648 which provided the procedure when a person to be arrested or a property to be attached was outside the local limits of the jurisdiction of the Court issuing a warrant of arrest or an order for attachment. Under that section a copy of the warrant or the order was required to be sent to the District Court within the local limits of whose jurisdiction such person resided or the property was situate, and on receipt of the same the District Court would cause the arrest or attachment to be made.

3. The same view has been taken by the same Bench in Surendra Nath Goswami v. Bansi Badan Goswami, 22 Cal WN 160 : (AIR 1918 Cal 911). In that case, the learned Subordinate Judge made an ad interim order for the attachment before judgment of the money lying in the hands of the officer of the East India Railway outside the jurisdiction of the Court and payable to the judgment-debtor also outside the jurisdiction. On service of notice upon the officer, the money was, however, transmitted to the Subordinate Judge. It was held that the interim order for attachment was entirely without jurisdiction. It appears that in that case the Subordinate Judge did not follow the procedure laid down in the provision of Section 136 of the Code of 1908, but directly attached the debt due to the judgment-debtor and had the money brought to his Court. It, therefore, follows from the Surendra Math Goswami's case that if a Court wants to attach before judgment a property which is situate outside its jurisdiction it should follow the procedure laid down in Section 136 of the present Code, that is, by sending the order for attachment to the District Court within the local limits of whose jurisdiction the property is situate together with the probable amount of the costs of attachment, But a Court cannot directly make such an attachment by issuing a prohibitory Order.

4. Mr. Sakti Nath Mukherjee, learned Advocate appearing on behalf of the plaintiff-opposite party submits that as the words 'any portion of his property within the jurisdiction of the Court' which were in Section 483 of the Code of 1882, having been dropped from the provision of Order 38. Rule 5 of the present Code, it is the intention of the legislature that the Court can attach property situate beyond its jurisdiction. He also submits that this distinction has not been noticed by Sir Asutosh Mookerjee in the case of Surendra Nath Goswami v. Bansi Badan Goswami (AIR 1918 Cal 911) (supra) as a result of which it was held in that case that the Court had no jurisdiction to attach property situate outside its jurisdiction. The Lahore High Court in Kanhya Ram v. Firm Dina Nath Hardial Mall, AIR 1926 Lah 330 and the Andhra Pradesh High Court in Chimandas Methuram v. Manager Mahadevappa Firm, : AIR1961AP417 dissented from the view taken in Surendra Nath Goswami v. Bansi Badan Goswami (supra) and relied on the omission of the said expression from Order 38, Rule 5 and held that attachment before judgment could be of property within or without the jurisdiction of the Court. There are other decisions which have expressed the same view. It is contended by Mr. Mukherjee that in Surendra Nath Goswami's case, the principles of law as to attachment before judgment have not been correctly laid down.

5. It is apparent that under Section 463, the power of the Court to direct attachment before judgment was limited to property situate within the local limits of the jurisdiction of the Court. The expression 'any portion of his property within the jurisdiction of the Court' in Section 483 has been omitted from the provision of Order 38. Rule 5 of the present Code of 1908. So in spite of the provision of Section 648, it was laid down in the above decisions under the Code of 1882 that a Court had no jurisdiction to direct attachment before judgment of property situate outside its jurisdiction. In Section 483 of the Code of 1877, the said expression was not there, but Pontifex J. in Kedar Nath v. Luchmun (1878-1 Cal LR 336) (supra) construed the word 'property' in Clauses (a) and (b) of Section 483 as property situate within the jurisdiction of the Court making an order for attachment. In the corresponding provision of Section 81 of the Code of 1859, the said expression was also not there, but in Balaram v. Solano (1872-8 Beng LR 335) (supra), Phear J. held that the property spoken of in Section 81 was property within the jurisdiction of the Court, namely, property which, when the decree was made, the Court would be able to reach and make available in satisfaction of the decree.

6. In Begg. Dunlop's case (1912-16 Cal WN 402) referred to above, the Bench was considering whether a Court in in execution of a decree for money could attach a debt payable to the judgment-debtor not residing within the jurisdiction of the Court. It was held that the Court was not competent to attach such a debt. It was not laid down in in that case that a property situate outside the jurisdiction of a Court could not be attached in execution of a decree, but what was laid down was that such property could not be attached by that Court directly. In that case. Sir Ashutosh Mookerjee referred to the provisions of Ss. 38 and 39 of the present Code of 1908 and observed that they plainly indicated the acceptance by the legislature of the general principles that no Court could execute a decree in which the subject-matter of the suit or of the application for execution was a property situated entirely outside the local limits of its jurisdiction. Under Section 39 of the Code of 1908, a decree can be transferred for execution to another Court in respect of the per-son or property of a judgment-debtor within the jurisdiction of that Court. So if a decree has to be executed in respect of a property situate outside the local limits of the jurisdiction of the Court which passed it, the decree may be sent to the Court within whose jurisdiction of the property is situate and that Court will take steps for the execution of the decree including that by attachment of the property, if necessary. The Court which passed the decree cannot, it is manifest, attach a property in execution of the decree not situate within its jurisdiction but within the jurisdiction of another Court. On the basis of the above principles their Lordships in Beg. Dunlop's case held that in execution of decree a Court cannot attach a debt payable to the judgment-debtor by a nonresident outside the jurisdiction. Although in that case, Sir Ashutosh Mookerjee referred to some decisions mentioned above which were mostly decisions under the Code of 1882, the real reason which seems to have weighed with his Lordship was that a Court had no jurisdiction to attach before judgment a property situate outside its jurisdiction,

7. It has not been laid down in Surendra Nath Goswami v. Bansi Badan Goswami (AIR 1918 Cal 911) (supra) that property lying outside the jurisdiction of the Court cannot at all be attached, but it can be attached by the Court by following the provision of Section 136. In our view, Surendra Nath Goswami's case has to be read along with Begg, Dunlop's case (1912-16 Cal WN 402) referred to above, where it has been clearly pointed out that an executing Court cannot directly attach a property lying outside its jurisdiction, but it can do so by transferring the decree to the Court within whose jurisdiction the property is situate in accordance with the provision of Section 39, The same principle would also apply to an order for attachment before judgment as provided by Order 38, Rules 5 and 6. In our view, therefore, the principle of law has been correctly laid down in the case off Surendra Nath Goswami v. Bansi Badan Goswami (supra),

8. In the instant case, by the impugned order the Court below has parsed conditional order for attachment of the money lying in the hands of the Additional Chief Engineer, Bandel. Thermal Power Station outside the jurisdiction the application for attachment before judgment has not yet been heard and disposed of by the Court below. It is also not known whether any attachment has been effected in terms of the said conditional order for attachment. If any such attachment has been made by the issue of any prohibitory order by the Court below without complying with the provision of Section 136, it must be held to be bad and shall stand set aside. As the material facts are not before us, we would proceed on the basis that no interim attachment has yet been actually made. In these circumstances, we are not inclined to interfere with the impugned order at this stage, for the petitioner can appear before the Court below and show cause against the prayer for attachment before judgment. It must be made clear that if after hearing the parties the Court below is of the view that any property of the petitioner lying outside the jurisdiction is required to be attached it can do so only in accordance with the provision of Section 136.

9. The Rule is, accordingly, disposed of without any order for costs. Let the records be sent down at once.

D.C. Chakravorti, J.

10. I agree. Order accordingly.


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