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1961 Supreme(Ker) 166
Judges : M.S.MENON,P.GOVINDA MENON
Bulkeesu Beegum - Appellant
Versus
Gonzago - Respondent
Case No : A. S. No. 451 of 1961
Decided On : 08/02/1961
Advocates Appeared :
T. S. Krishnamoorthy Iyer; G. Rajasekhara Menon; For Appellant K. Velayudhan Nair; V. S. Moothath; K. J. Joseph; M. Krishnan Nair; G. Govinda Pillai; M. C. Sen; For Respondent
Courts cannot attach a debt payable to the judgment-debtor outside its jurisdiction by a person not resident within its jurisdiction, and there is a provision for transfer of the decree to a court within the local limits of which the debtor resides.
Headnote:
Attachment of Debt - Jurisdiction - The court held that it is not competent for a court to attach a debt payable to the judgment-debtor outside its jurisdiction by a person not resident within its jurisdiction. The reason for this is that the court would be powerless to enforce its order if the person disobeyed it, and there is a provision for transfer of the decree to a court within the local limits of which the debtor resides.
Fact of the Case:
The appellant, as the decree-holder, sought to attach amounts due to the judgment-debtor from the Food Department of the Government of India in execution of the decree.
Finding of the Court:
The lower court correctly found that the debt was payable to the judgment-debtor outside its jurisdiction and by a person not resident within its jurisdiction, and therefore vacated the order of attachment.
Issues: The issue was whether the court had jurisdiction to attach a debt payable to the judgment-debtor outside its jurisdiction by a person not resident within its jurisdiction.
Ratio Decidendi: The court held that it is not competent for a court to attach such a debt and that there is a provision for transfer of the decree to a court within the local limits of which the debtor resides.
Final Decision: The appeal was dismissed with costs, and the lower court's order vacating the attachment was sustained.
1. The decree-holder in O.S. No. 74 of 1958 of the court of the Subordinate Judge, Quilon, is the appellant before us. In execution of the decree she attached certain amounts due to the judgment-debtor (respondent) from the Food Department of the Government of India.
2. By an order dated 17-7-1961- after the remand directed in A.S. No. 392 of 1961-the lower court has vacated the order of attachment. This appeal questions the correctness of that order.
3. The lower court has found-quite correctly-that the debt is payable to the judgment-debtor (respondent) outside the jurisdiction of the court and by a person not resident within its jurisdiction. It is well-settled that "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". (See 1955 KLT. 637). To the same effect is AIR. 1934 Nagpur 167:
"Under 0.21, R.46, the executing court has no jurisdiction to pass any prohibitory order unless either the debt to be attached is within the territorial jurisdiction of that Court or the person against whom it is claimed resides within its jurisdiction."
4. The reason is clear and can be stated in the words of the leading case on the subject, ILR. 39) Calcutta 104. In that case Mookerjee, J. said:
"I am unable to hold, on principle, that it is competent to a Court to issue such a prohibitory order upon a person resident outside the local limits of its jurisdiction, in respect of property also beyond such local limits. If such a person disobeyed the order of the Court, and in defiance thereof made the payment, the court would be powerless to enforce its order by proceedings in contempt. On the other hand, there is no good reason why the decree-holder should not apply for transfer of the decree to the Court, within the local limits of which the garnishee, that is, the debtor of the judgment debtor resides.
He went on to say:
"S. 46 expressly provides that, upon the application of the decree-holder the Court, which passed the decree may, whenever it thinks fit, issue a precept to any other Court, which would be competent to execute such decree, to attach any property belonging to the judgment-debtor and specified in the precept; and the Court, to which a precept is so sent, shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree. This provision plainly indicates that the Legislature did not intend that a Court should directly attach property beyond the local limits of its jurisdiction"
5. It was suggested to us that the work contracted to be done was to be done within the jurisdiction of the court of the Subordinate Judge of Quilon, that part of the cause of action hence arose within the jurisdiction of that Court, and that it is, therefore, possible for that court to issue a prohibitory order. We are unable to agree. What we are concerned with is the capacity to execute a decree, not the capacity to entertain a suit. As stated in AIR. 1928 Nagpur 210 a prohibitory order for attachment of money under O. XXI, R.46, should come from a judge having jurisdiction in the place where it is to be executed.
6. AIR. 1915 Lahore 273 is a case in point. The head-note sums up the decision as follows:
"A decree passed by a Court at Jubbulpur was transferred for execution to a Court at Ambala. The latter Court issued a prohibitory order to the Examiner of Accounts, Lahore and to the Executive Engineer, Saharanpur, directing them not to make any payments to the judgment-debtor, a contractor, to whom money was due on contracts on account of work done under the Executive Engineer, Saharanpur. It was contended for the judgment-debtor that the Ambala Court had no jurisdiction to issue the prohibitory orders:
Held:-that the contention was valid, for there was nothing to show that the judgment-debtor could have
