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Surendra Nath Goswami and ors. Vs. Bansi Badan Goswami and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.457
AppellantSurendra Nath Goswami and ors.
RespondentBansi Badan Goswami and ors.
Cases ReferredLondon Corporation v. Cox.
Excerpt:
civil procedure code (act v of 1908), order xxxviii, rule 5, clause (3) - attachment before judgment--order passed without jurisdiction--realisation of debt payable of defendant--withdrawal by decree-holder in pursuance of illegal order, effect of--jurisdiction. - .....appeared before the subordinate judge and raised objection to the payment of this money to the decree-holders, on the allegation that they had acquired a valid title to the same, while it was still in the hands of the railway authorities, by virtue of an assignment in their favour by the defendant-debtor on the 22nd august 1915. the subordinate judge overruled the objection, and on the 8th and 27th march 1916 the money was paid out to the decree-holders in two instalments on the basis of an application for execution, presented on the 4th february 1916, but not followed by an order for attachment, obviously on the erroneous assumption that a valid order for attachment before judgment had been previously made and was still in operation; no such order, as we have seen, had ever been.....
Judgment:

1. We are invited in this Rule to examine the legality of an order made by the Court below for the payment of a sum of money to the decree-holder, opposite party. The facts material for the determination of the questions in controversy may be shortly stated. On the 30th June 1914, the plaintiffs instituted a suit for recovery of money against the defendant in the Court of the Subordinate Judge of Nadia. On the next day, they applied for an order for attachment before judgment in respect of a sum of Rs. 4,200 due to the defendant from the East India Railway authorities for work executed under a contract. The Subordinate Judge, on that date, made a preliminary order on the application under Rule 5 of Order XXXVIII of the Code. The order called upon the defendant to show cause why he should not furnish security for the sum mentioned and why, on his failure to do so, an order for attachment of the sum before judgment should not be made. The Court also proceeded to make an ad interim order for attachment under Clause (3) of Rule 5. This ad interim order was communicated to the officer of the East India Railway who had the money at his disposal. It is inexplicable how the Subordinate Judge came to pass this order, as the officer resided beyond his jurisdiction and the debt, due to the defendant, was not payable within his jurisdiction. On service of notice upon the officer, the money was, however, transmitted to the Subordinate Judge on the 8th March 1916 by means of a cheque on the Bank of Bengal. Thereafter, for some unexplained reason, the application for attachment before judgment was not further considered, although the case came before the Subordinate Judge on many occasions. Ultimately, an ex parte decree was made in favour of the plaintiffs on the 23rd November 1914. The position, consequently, on that date was, that the application for attachment before judgment lapsed; but a large sum of money later on came into the custody of the Court, placed at its disposal by the Railway authorities. The petitioners, who have obtained this Rule, then appeared before the Subordinate Judge and raised objection to the payment of this money to the decree-holders, on the allegation that they had acquired a valid title to the same, while it was still in the hands of the Railway authorities, by virtue of an assignment in their favour by the defendant-debtor on the 22nd August 1915. The Subordinate Judge overruled the objection, and on the 8th and 27th March 1916 the money was paid out to the decree-holders in two instalments on the basis of an application for execution, presented on the 4th February 1916, but not followed by an order for attachment, obviously on the erroneous assumption that a valid order for attachment before judgment had been previously made and was still in operation; no such order, as we have seen, had ever been made, none could have been, indeed, legally made, and none was in force in fact or in law. It is obvious that the action taker by the Subordinate Judge in this matter has been illegal from beginning to end, although, even on review, he has declined to re call his order on the 3rd July 19.6.

2. As pointed out by this Court in the case of Begg Dunlop and Co. v. Jagunnath Marwari 11 Ind. Cas. 417 : 39 C. 104 : 16 C.W.N. 402 : 14 C.L.J. 228, it is 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 outside the jurisdiction by a person not resident within the jurisdiction of that Court. Consequently, in the case before us, the application for attachment before judgment of the money in the hands of the Railway Authorities should never have been entertained by the Subordinate Judge. The ad interim order was thus entirely without jurisdiction. The ultimate order contemplated by the Court was, as we have seen, never passed. The position, consequently, was that the Court had, in its hands, money which could not have been in law and had never been in fact duly attached, which had been in reality obtained by usurpation of jurisdiction. There is thus no escape from the conclusion that the money was obtained, and was paid oat to the decree., holders, wholly without authority. In these circumstances, there can be no serious controversy that the illegal orders must be cancelled and the parties restored to the position they respectively occupied before the illegal intervention of the lower Court. We have been, however, pressed by the decree-holders to stay our hands on the ground that the merits, as they allege, are in their favour. It cannot be overlooked, however, that the merits, assuming them to have been investigated at all, have been determined by a Court which had usurped jurisdiction and was not competent to discuss the matter in controversy. In our opinion, when a Court has manifestly usurped jurisdiction and has illegally secured possession of a fund, which should not have come under its control, its orders must be discharged; it would be lamentable to allow such illegal orders to stand, on the plea that possibly similar orders could have been made by a Court of competent jurisdiction. In this connection, the weighty words of Lord Halsbury in Farquharson v. Morgan (1894) 1 Q.B. 552 : 63 L.J.Q.B. 474 : 9 R. 202 70 L.T. 152 : 42 W.R. 306 : 58 J.P. 495 may be usefully recalled: 'it has been long settled that, where an objection to the jurisdiction of an inferior Court appears from the face of the proceedings, it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the Judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction.' Lord Davey in the same case referred to the decision in Worthington v. Jeffries (1875) 10 C.P. 379 : 44 L.J.C.P. 209 : 32 L.T. 606 : 23 W.R. 750 and observed that it has always been the policy of the law, as a question of public order, to keep inferior Courts strictly within their proper sphere of jurisdiction see also Burder v. Veley (1840) 12 Ad. And E. 233 : 113 E.R. 801; Be Haher v. Queen of Portugal (1851) 17 Q.B. 171 : 20 L.J.Q.B. 488 : 16 Jur. 164 : 117 E.R. 1246 l 85 R.R. 398; London Corporation v. Cox. (1867) 2 H.L. 239 at P. 278 : 36 L.J. Ex. 255 : 16 W.R. 44. We are clearly of opinion that the proceedings in the Court below have been ultra vires throughout and that the orders of the Subordinate Judge for payment of the fund in his hands, made on the 8th and 27th March 1916, must be cancelled.

3. The result is that the rule is made absolute and all the orders of the Subordinate Judge in this matter discharged. The decree-holders are directed to bring back into the lower Court, on or before the 15th November next, the sums they have withdrawn from that Court, together with interest there on at 3 per cent, per annum. The sum must be refunded in the Court of the Subordinate Judge of Nadia, because it was from that Court that the money was withdrawn under an order made without jurisdiction. If the money is not refunded on or before the 15th November next, as now directed, the Subordinate Judge will forthwith proceed to execute the order of this Court and realise the money by attachment and sale of the moveable and immoveable properties of the decree-holders and by attachment of their persons, if necessary This procedure must be adopted, whether the petitioners take any steps in that behalf or not, as it is imperative that the money which has been paid out of Court under an illegal order made without jurisdiction, must be brought back into Court. We hope, however, that it will not be necessary for the Subordinate Judge to take a step of this character and that the decree-holders will bring back the money into Court on or before the 15th November next, as directed. As soon as the money has been refunded, it will be transmitted, by the Subordinate Judge to the Court of the Subordinate Judge of Hooghly, which is the Court of competent jurisdiction in this matter; at the same time, the application made by the decree-holders on the 4th February 1916, for execution of their decree against their judgment-debtor, will be transmitted to that Court. The Subordinate Judge of Hooghly will keep the money in his Court suitably invested, if necessary, and will proceed to deal with the application for execution. He will, along therewith,- take up for determination the objection of the present petitioners, namely, that they had acquired a valid title to this fund under an assignment made in their favour on the 22nd August 1915 by the debtor of the decree-holders. They have in this Court produced the deed of assignment, which will be received here and marked as an exhibit and will be transmitted to the Court of the Subordinate Judge of Nadia, to be transmitted by that officer to the Court of the Subordinate Judge of Hooghly along with the application for execution of the decree-holders. The decree-holders will be at liberty to amend their application for execution, after notice to the judgment-debtor and the objectors. The Subordinate Judge will receive such evidence as may be adduced by the parties for the elucidation of the questions in controversy; but we may add that we hold that there was no valid attachment of this fund on the 22nd August 1915, so that if it is established that the assignment related to this fund and was valid and operative, the decree-holders are not entitled to proceed against it. There will be no order for costs in these proceedings.


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