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1961 DIGILAW 245 (KER)

Bulkeesu Beegum v. Gonzago

1961-08-02

M.S.MENON, P.GOVINDA MENON

body1961
Judgment :- 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. 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. 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 claimed payment at Ambala and that the mere fact that the judgment-debtor resided at Ambala and the work done by him was done partly in the Ambala District and his claims had first to be passed by the Examiner of Accounts at Lahore did not confer jurisdiction on the Ambala Court. The case is also an authority for the proposition that not merely the garnishee, but also the judgment-debtor, is entitled to raise the objection as to want of jurisdiction. 7. In the light of what is stated above the lower court's order has to be sustained and this appeal should fail. The appeal is dismissed with costs. Dismissed.