Ram Pertab Jhowar v. Madho Rai — 1902 DIGILAW 2 (CAL)

JUDGMENT Sale, J. - In the unreported case of Babulal v. Joilal Unreported 829 of 1896 21-12-96 Sale, J. your Lordship held that this Court had jurisdiction to attach before judgment property outside the jurisdiction of this Court, but Jenkins, J., decided in the unreported case of Ram Per tab v. Pokur Mull Unreported 413 of 1898, 28-7-98 Jankins, J. that this Court had no such jurisdiction. There is a conflict of decision on this point. I may, however, mention that Petheram, C. J., in an unreported case, 149 of 1896, decided in favour of the jurisdiction of this Court. I understand there are several other unreported cases including a decision by Trevelyan, J., in which this Court has decided similarly. [Sale, J.My impression is that the practice was uniform until Jenkins, J., set it aside.] 2. The jurisdiction of this Court is given by sec. 648, C. P. C., read with Sec. 483. Sec. 648 is first introduced by Act X of 1877 and was amended as at present worded by Act XII of 1879. The wording in the present section is different from the wording of Act X of 1877. The present section is much wider than the former one. It is clear that in Act X of 1877 sec. 648 only applied to cases where attachment could issue under any of the provisions of the Code and did not vest in the Court any power to attach property which it did not already possess by any previous section of the Code. Under the present section the Court has wider powers and except in cases relating to execution of decrees which is expressly excepted, it refers to attachments under any circumstance provided for by the Code. The decisions to which I shall refer as well as the judgment of Jenkins, J., held that this section did not affect sec. 483 or rather that it excluded that section. I submit the fact that cases relating to execution of decrees have been expressly excepted shows that it applies to all cases not expressly so excepted. With regard to sec. 483 it is true that the latter part of that section and subsequent sections in that chapter, which relate solely to the mode in which the attachments are to be affected, deal only with property within the jurisdiction of the Court. With regard to sec. 483 it is true that the latter part of that section and subsequent sections in that chapter, which relate solely to the mode in which the attachments are to be affected, deal only with property within the jurisdiction of the Court. But the first part of the section which relates to the circumstances under which an application for attachment can be made is not limited to such property within the jurisdiction of the Court. There is nothing in the first part of sub-sec. (a)--"is about to dispose of the whole or any part of his property"--limited to property within the jurisdiction. 3. [SALE, J.--What is the effect of the words "under any provision of this Code "in sec. 648.] 4. That means under any of the circumstances mentioned in the Code under which properties can be attached. 5. [SALE, J.--What is the alternative meaning given to that section ?] 6. It was held in Krishnasami v. Engel I. L. R. 8 Mad. 20 (1884) as also in the case of Ram Pertab v. Pokur Mull Unreported 413 of 1898, 28-7-98 Jankins, J. that it only applied to attachments which the Code expressly allowed without limiting it to property within the jurisdiction, such as secs. 168 and 493, I submit if it was the intention of the Legislature to refer only to attachments of that nature and to exclude sec. 483 it would have added the words "and attachments before judgment" after the words "not relating to the execution of decrees." There is no reason whatsoever for excluding attachments before judgment and there is nothing in Sec. 648 itself to limit its operation to attachments under secs. 648 and 493. Jenkins, J., was of opinion that the Legislature had excluded sec. 483 on the ground that its provisions were quasi-penal in character. But secs. 168 and 493 are if anything more penal in character. Sec. 483, as it at present stands, deals with the mode of enforcing an order of attachment only when the properties are within the jurisdiction. But the first part of the section clearly allows of an application to attach property without the jurisdiction In re Abraham 6 Bom. H. C. R. A. C. J. 170 (1869). That case was overruled in Nur Muhammad v. Ibrahim Meman 8 Bom. But the first part of the section clearly allows of an application to attach property without the jurisdiction In re Abraham 6 Bom. H. C. R. A. C. J. 170 (1869). That case was overruled in Nur Muhammad v. Ibrahim Meman 8 Bom. H. C. R. O. C. J. 29 (1871) on grounds which were valid at the time that decision was passed but which are not valid now. That decision was under Act VIII of 1859 which did not contain any provision of the nature of sec. 648 and the enactment of that section by Act X of 1877 does away with the ground upon which the decision in Nur Muhammad v, Ibrahim Meman 8 Bom. H. C. R. O. C. J. 29 (1871) was based. There is also the case of Balaram v. Salano 8 B. L. R. 335 (1872) against me but that was also a case under Act VIII of 1859. In Kedar Nath v. Luchmun Chetty 1 C. L. R. 336 (1878), Pontifex, J., also decided that this Court had no jurisdiction to attach before judgment property outside local jurisdiction. That was a case under Act X of 1877, i.e., before sec. 648 was amended by Act XII of 1879. His Lordship does not refer in his judgment to sec. 648 at all, though that section is referred to in argument nor does either his Lordship or counsel refer to the first part of sec. 483 which I have submitted allows of an application with regard to property outside the jurisdiction. 7. [SALE, J.--It seems that after this decision of Pontifex, J., sec. 483was amended by inserting the words "property within the jurisdiction" in the latter part of that section and the wording of sec. 648 altered so as to confine attachments under sec. 483 to property within the jurisdiction and to allow the Court if it so desires to attach in cases of property outside the jurisdiction.] 8. I submit that is so. What the Legislature intended was that under sec. 483 an application can be made for attachment irrespective of where the property is, but if the property is within the jurisdiction then the procedure laid down in subsequent part of that section and the following sections is to be followed and when property is outside the jurisdiction then the procedure of sec. 648 is to be followed. 9. 483 an application can be made for attachment irrespective of where the property is, but if the property is within the jurisdiction then the procedure laid down in subsequent part of that section and the following sections is to be followed and when property is outside the jurisdiction then the procedure of sec. 648 is to be followed. 9. [SALE, J.--I should have thought it clear, but for the judgment of Jenkins, J., that under sec. 648 read with sec. 483 the Court can attach property outside the jurisdiction.] 10. That is so ; Jenkins, J.'s, judgment I have already commented on. I submit his Lordship was in error in saying that Ch. XXXIV embodies all the provisions that relate to attachments. See Sec. 648 as further amended by Act VIII of 1898, which introduced the last two paragraphs expressly referring to Ch, XXXIV.--Rep. It may be said to embody all the provision with regard to property within the jurisdiction but not so far as property outside jurisdiction is concerned. Moreover there are other sections in the miscellaneous chapter which modify sections in previous chapter which may be said to be exhausted in the same way as Ch. XXXIV ; vide sec. 649. [SALE, J.--You need not trouble about that. It has been the uniform practice of this Court to attach before judgment property outside jurisdiction and I shall follow the practice. The rule is made absolute.]