Judgement

Appeal (No. 86 of 1931) from a decree of the High Court in its appellate jurisdiction (October 2, 1930) reversing an order of the Court in its original jurisdiction (April 23, 1929).

The question for determination in the appeal was whether under an adjudication in insolvency by the District Court at Secunderabad on September 15, 1928, there vested in the respondent, as receiver, the benefit of a decree obtained by the insolvents in the Madras High Court freed from an attachment previously made by that High Court upon the application of the appellants father Lakshminarayana, since deceased and represented by the appellant.

The facts are stated in the judgment of the Judicial Committee.

Secunderabad was fixed for a British Cantonment pursuant to art. 4 of a treaty of 1798 between the Nizam and the East India Company. Civil Jurisdiction is exercised in the Administerial Areas of the Hyderabad State, which include the Cantonment of Secunderabad, under an order of the Governor-General in Council, made on December 21, 1925, under the Indian (Foreign Jurisdiction) Order in Council, 1902; the Order of 1925 superseded earlier Orders. In 1913 an Order similarly made applied the Provincial Insolvency Act (III. of 1907) to the Cantonment of Secunderabad ; the amending Act (V. of 1920) was not so applied until 1929.

The Appellate Court (Curgenven and Bhashyam Ayyangar JJ.), while agreeing with the view of the trial judge, Kumaraswamy Sastri J., that the District Court at Secunderabad was a foreign Court in relation to the Courts of British India, reversed his decision as to the effect of the adjudication. By separate judgments the learned judges held that the claim of the receiver in the insolvency had priority over the claim under the attachment. The appeal is reported at I. L. R. 54 M. 727.

1933. Jan. 16, 17. Upjohn K.C. and Hyam for the appellant. It was rightly held by the Courts in Madras that the District Court at Secunderabad was a foreign Court in relation to Courts in British India. The adjudication therefore affected no immovable property in British India, nor any movable property there which the insolvent could not assign to the receiver, although that inability was due to legal process which was incomplete Galbraith v. Grimshaw ([ 1910] A. C. 508.) ; Diceys Conflict of Laws, 5th ed., rr. 123, 124.

Upon the true construction of the Code of Civil Procedure the attachment operated as a charge or Ken on the decree, as it rendered the decree realizable by sale Code of Civil Procedure, 1908, ss. 60, 64, 73 ; Order xxi., r. 53 (4.) (6.) ; Appx. E, Forms 22, 23. The judgments to the contrary in Kristnasawmy Mudaliar v. Official Assignee of Madras (( 1903) I. L. R. 26 M. 673.) and Frederick Peacock v. Madan Gopal (( 1902) I. L. R. 29 C. 428.) conflicted with the judgment of the Board in Suraj Bunsi Koer v. Sheo Proshad Singh (( 1879) L. R. 6 I. A. 88, 109.) and that of the Calcutta Full Bench in Anand Chandra Pal v. Panchilal Sarma. (( 1870) 5 Ben. L. R. 691.) The judgment in Moti Lai v. Karrab-ul-din (( 1897) L. R. 24 I. A. 170.) was misunderstood and did not decide the question. The statement in Raghunath Das v. Sundar Das Khetri (( 1914) L. R. 411. A. 251.) was in terms based upon a concession by counsel. All the decisions relied on against the appellant upon this point were as to the effect of an adjudication in British India under the Indian Insolvent Act, 1848, upon a previous attachment, and that is a different question to that now arising. Whether or not the attachment created a charge, its effect, under s. 64 of the Code, was to preclude the insolvent from assigning it to the receiver ; consequently, upon the principle of international law already mentioned, the decree did not vest in the receiver, or vested subject to the attachment. It is not material that had the adjudication been in British India, s. 34 of the Provincial Insolvency Act, 1907, would have prevented the attachment being available against the official