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Sm. Sushama Roy Choudhurani Vs. A.S.M. Osman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1030 of 1949
Judge
Reported inAIR1950Cal255,54CWN491
ActsCode of Civil Procedure (CPC) , 1908 - Section 45
AppellantSm. Sushama Roy Choudhurani
RespondentA.S.M. Osman
Advocates:Chandra Sekhar Sen and ;Radha Kanta Bhattacharjya, Advs.
Cases ReferredDominion of India v. Hiralal Bothra
Excerpt:
- .....order that the present rule has been obtained.3. it is now incontestable that the dominions of india and pakistan are now two separate sovereign and foreign states. a court in india has no authority on any court or officer resident in the other dominion. an order may be passed by a court only if such an order can be enforced though the person or party refuses to carry out that order.4. further, the provisions contained in section 60, civil p. c., read with section 136 and order 21, rule 48 of the code prima facie apply only to courts in india. this code is not attracted or is applicable outside india. it is permissible for the court, as is made clear in the sections themselves, to issue a writ of attachment outside the jurisdiction of that particular court, but that court must be.....
Judgment:

R.P. Mookerjee, J.

1. This is an application for revision of an order passed by the Munsif refusing to issue an order for attachment in respect of moneys payable by a person now resident in East Pakistan.

2. The present petitioner obtained a decree from the Court at Alipore against the opposite party who was at that time a resident within the jurisdiction of that Court and was serving as an Inspector under the Calcutta Police. The opposite party having opted for Pakistan as from after 15th August 1947, he is now stated to be acting as an Inspector of Police at Dacca. The decree of the Alipore Court was put into execution in that Court. The decree-holder prayed for the realisation of the balance of her decretal dues by attachment of the salary of the opposite party payable at Dacca. The petitioner accordingly prayed for the issue of a writ of attachment of the salary of the opposite party under the provisions contained in Rule 28 of Order 21, Civil P. C. The writ of attachment was returned unexecuted from the Court in East Pakistan with the endorsement that the writ should be sent through the proper diplomatic channel. The Deputy High Commissioner for India in East Pakistan was approached and he intimated to the Munsif at Alipore that the Government of India had not laid down any procedure for levying attachment through the Deputy High Commissioner. The decree-holder petitioner then applied to the Alipore Court for requesting the Central Government for the realisation of the balance of the decretal dues. By an order, dated 4th April 1949, the learned Munsif dismissed the execution case on the ground that the attachment process was not cap-able of execution in view of the fact that the judgment-debtor was living in another Dominion. It is against this order that the present rule has been obtained.

3. It is now incontestable that the Dominions of India and Pakistan are now two separate sovereign and foreign states. A Court in India has no authority on any Court or Officer resident in the other Dominion. An order may be passed by a Court only if such an order can be enforced though the person or party refuses to carry out that order.

4. Further, the provisions contained in Section 60, Civil P. C., read with Section 136 and Order 21, Rule 48 of the Code prima facie apply only to Courts in India. This Code is not attracted or is applicable outside India. It is permissible for the Court, as is made clear in the sections themselves, to issue a writ of attachment outside the jurisdiction of that particular Court, but that Court must be situated within India where the Code of Civil Procedure is in force. Reference may in this connection be made to the decision in Mela Mal v. Bishen Das, 13 Lah. 206 : (A. I. R. (18) 1981 Lah. 723), where cognate provisions as in Rule 5 of Order. 38, Civil P. C., relating to attachment before judgment by civil Courts came up for consideration. Even a Court which was situated at Khasgar which was admittedly a foreign territory, but where a Court had been established under Foreign Jurisdiction Act, 1890, by His Majesty in Council was not even considered to be within the category of Courts established by the Governor-General in Council. A Court situated in British India at that date was held to be incompetent to attach property situated in Khasgar. The rules contained in the Code of Civil Procedure are obviously restricted to Courts in India.

5. Reference may also be made to the recent decision of this Court in Dominion of India v. Hiralal Bothra : AIR1950Cal12 , where the relation between the two States, and the position and jurisdiction of the Courts situated in the two Dominions fell to be considered. The Court at Dacca comes within the definition of a foreign Court, as defined in Section 2(5), Civil P. C. The order for attachment is to be sent to the relevant District Court under Section 136, Civil P. C. The District Court as referred to in Section 156 will be, in the present case, if this section be applicable and enforceable in East Pakistan though part of the law of India, the District Court at Dacca. The District Court at Dacca is a foreign Court as being situate beyond the limits of all the provinces of India and is neither established nor continued by the Governor-General. It is not competent for a Court in India to direct a foreign Court, situated at Dacca, to take necessary steps for the execution of a decree. As held by this Court in Dominion of India v. Hiralal Bothra, : AIR1950Cal12 , a decree passed by a Court which is now in one Dominion cannot be executed by another Court in the other Dominion. The two Dominions are not reciprocating countries as envisaged in Section 44A of the Code and there has not been any intestate arrangement between the two States.

6. The learned Munsif was correct in his decision that be had no jurisdiction to issue a writ of attachment to Pakistan.

7. This Rule is accordingly discharged, As there is no appearance on behalf of the opposite party in this Court, there will be no order for costs in this Court.


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