The debt is due from the company which carries on its business at Calcutta. According to the decision in Begg Dunlop's case [1912] 39 Cal. 104 the location of the debt is where the defendant resides. The debt and the debtor both being outside the jurisdiction of the Bolpur Court, that Court was not competent to sell the debt and the plaintiff did not acquire the right to recover it by his purchase at Court sale.
Suhrawardy, J.
1. One Sasi Bhusan Bhattacharya living within the jurisdiction of the Munsif of Bolpur in the District of Birhbtum insured his life with the defendant company for Rs. 2,000 by Policy-No. 7218. He borrowed some money from the plaintiff who obtained a decree for the amount against his legal representatives after his death, and put it in execution in the Court of the Munsif at Bolpur who had passed the decree. In execution of the decree, the policy or more correctly speaking the amount due under the policy was first attached by the Munsif of Bolpur under Order 21, Rule 46, Civil P. C, and subsequently sold by him and purchased by the plaintiff. Not having obtained satisfaction from the defendant, the plaintiff brought the present suit to recover the amount to which he said he was entitled by his purchase of the debt as aforesaid. The plea of the defendant company was that the Bolpur Court had no jurisdiction to sell the debt due under the policy and, so the purchase by the plaintiff did not give him the right to recover it from the defendant. The defendant further objected that the suit did not lie in the Court of the Subordinate Judge of Birbhum. As to the second ground of objection, the trial Court held that it had jurisdiction to entertain the suit and the learned District Judge on appeal did not consider this point, as in his opinion the plaintiff's suit failed on other grounds. The defendant however desires to support the decree of the Court below on this ground also.
2. On the first objection of the defendant both the Courts have held that the Bolpur Court had no jurisdiction to attach the debt due from the defendant company and had consequently no jurisdiction to sell it and that by his purchase at such sale the plaintiff did not acquire any right to recover the money. The learned District Judge after discussing the law and facts of the case has recorded his findings in these words:
I fully agree with the conclusions arrived at by the learned Subordinate Judge and hold that the order of attachment was ab initio void and the alleged sale subsequently held gave no right, title or interest to the decree-holder the plaintiff in this case.
3. In this view of the matter both the Courts below have dismissed the plaintiff's suit and the plaintiff has appealed.
4. It has not been seriously pressed that the attachment under Order 21, Rule 46, Civil P. C, of the debt was a valid attachment. But it has been argued that any irregularity in or even absence of attachment does not vitiate the sale and in support of this contention several cases have been cited of which the latest is Naresh Chandra Mitra v. Molla Atul Ha in which all the earlier cases have been
considered. As a pure question of law there can be no dispute that the invalidity or absence of attachment would not invalidate the sale, inasmuch as the order of attachment is only a prohibitory order issued on the judgment-debtor and the public in order to protect the interest of the execution creditor. But this view of the law is of no help to the plaintiff in the present case. In ail those cases the Court had jurisdiction to sell the property. The executing Court, like the Court entertaining a suit (except in case of breach of contract), must have territorial jurisdiction over the subject-matter against which execution is sought. Where it has no such jurisdiction the provisions of Section 89, Civil P. C, must apply, that is to say, the executing Court should send the application for execution to any other Court which has such territorial jurisdiction. The word may" used in Section 39 does not mean that it is in the discretion of the Court which passed the decree either to execute the decree itself or to send the application |for execution to another Court where the property against which execution is sought is situated outside the jurisdiction of the Court which passed the decree. [The discretion given there indicates that the Court should send the application for (execution to another Court where it thinks (that the decree is executable in the way prayed for:
Speaking generally, it is an accepted principle of international jurisprudence that the jurisdiction of a Court in enforcing execution of its decree is restricted by its territorial limitations. That is to say, the jurisdiction of the Court is circumscribed by, and is co-extensive with its territorial limits. Thus a Court desiring to seize or attach the property of a judgment-debtor outside its jurisdiction, and where such property is in the hands of, or the custody of another, also outside the jurisdiction, such property sought to be attached in aid of the execution can only be reached by a regular method of procedure which has been prescribed by the rules of the Civil Procedure Code and similar Codes which prevail in all countries, viz., the decree of the executing Court must be transferred to the local limits of the jurisdiction of the external Court within which the property sought to be attached is for the time being." Per Atkinson, J.. in Bank of Bengal v. Sarat Ch. Mitra [1919] 4 Pat. L.J. 141.
5. If the moveable property such as money against which execution is asked for is not within the territorial limits of the executing Court, the only other way in which that Court may have jurisdiction to execute the decree is when the person against whom execution is sought is or resides within the jurisdiction of that Court. Except whore these or one of these circumstances exist, or exists, the executing Court has no jurisdiction to seize property which is not within its territorial jurisdiction and where the person against whom execution is sought does not reside within its territorial jurisdiction. This point has been settled by the decision in Begg Dunlop & Co. v. Jagannath Marwari [1912] 39 Cal. 104 where the question arose with regard to the validity of attachment of a certain sum of money lying outside the jurisdiction of the executing Court. The learned Judges say:
It is not competent to the 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 a resident within the jurisdiction of that Court.
6. But Mr. Roy Choudhury on behalf of the appellant argues that even though the attachment was bad in law and the Court at Bolpur had no jurisdiction to attach the money in the hands of the defendant, it had still the jurisdiction to sell the debt due to the deceased judgment-debtor. The condition that in order to give jurisdiction to the executing Court the debt must be either within the jurisdiction of the executing Court or the person against whom it is claimed is a resident within its jurisdiction applies equally to attachment and to sale. If a property cannot be attached being outside the jurisdiction of a Court it can neither be sold by that Court. In Surendra Nath v. Bansi Badan [1916] 36 I.C. 457 the view expressed in Begg Dunlop & Co. v. Jagannath Marwari [1912] 39 Cal. 104 was confirmed and it was further observed that an inferior Court should not be allowed to usurp jurisdiction it did not possess, and the order passed by a Court by usurpation of jurisdiction cannot be allowed to stand on a consideration that similar order would have been made on the merits by a Court of competent jurisdiction.
7. In the present case there can be no quarrel about the facts. The debt is due from the company which carries on its business at Calcutta. According to the decision in Begg Dunlop's case [1912] 39 Cal. 104 the location of the debt is where the defendant resides. The debt and the debtor both being outside the jurisdiction of the Bolpur Court, that Court was not competent to sell the debt and the plaintiff did not acquire the right to recover it by his purchase at Court sale.
8. A further question is raised, namely, that under the contract evidenced by the policy money is payable to the legal representatives of Sasi Bhusan at Bolpur and so the Bolpur Court had jurisdiction over it. That question is relevant only with reference to the objection raised on behalf of the respondent that the suit is not maintainable in the Birbhum Court. It makes no difference so far as the consideration of the present question is concerned, as to where the money is payable. The point is where the money was lying when execution was taken. I agree with the learned District Judge in holding that the attachment and sale are both void and that the plaintiff has no title to the money in the hands of the defendant. In this view of the matter it is not necessary to consider whether the Bolpur Court had jurisdiction to entertain the suit. The result is that the appeal is dismissed with costs.
Graham, J.
9. I agree. In my judgment the appeal fails on the ground that the Bolpur Court had no jurisdiction to attach or sell any property outside its territorial jurisdiction. The sale was therefore a nullity and could confer no right or title upon the plaintiff: see Begg Dun-lop & Co. v. Jagannath Marwari [1912] 39 Cal. 104. As. was pointed out in that case the proper procedure for attachment of the policy would have been to transfer the decree to the Court within whose jurisdiction the debtor of the judgment-debtor resided. That course was not adopted. As my learned brother has stated, the case referred to above was subsequently followed in another case in this Court; Surendra Nath Goswami v. Bansi Badan Goswami [1916] 36 I.C. 457.
Calcutta High Court
Hari Das Basu vs National Insurance Company, Ltd. on 22 April, 1931
Equivalent citations: AIR 1932 Cal 213, 136 Ind Cas 533
JUDGMENTSuhrawardy, J.
1. One Sasi Bhusan Bhattacharya living within the jurisdiction of the Munsif of Bolpur in the District of Birhbtum insured his life with the defendant company for Rs. 2,000 by Policy-No. 7218. He borrowed some money from the plaintiff who obtained a decree for the amount against his legal representatives after his death, and put it in execution in the Court of the Munsif at Bolpur who had passed the decree. In execution of the decree, the policy or more correctly speaking the amount due under the policy was first attached by the Munsif of Bolpur under Order 21, Rule 46, Civil P. C, and subsequently sold by him and purchased by the plaintiff. Not having obtained satisfaction from the defendant, the plaintiff brought the present suit to recover the amount to which he said he was entitled by his purchase of the debt as aforesaid. The plea of the defendant company was that the Bolpur Court had no jurisdiction to sell the debt due under the policy and, so the purchase by the plaintiff did not give him the right to recover it from the defendant. The defendant further objected that the suit did not lie in the Court of the Subordinate Judge of Birbhum. As to the second ground of objection, the trial Court held that it had jurisdiction to entertain the suit and the learned District Judge on appeal did not consider this point, as in his opinion the plaintiff's suit failed on other grounds. The defendant however desires to support the decree of the Court below on this ground also.
2. On the first objection of the defendant both the Courts have held that the Bolpur Court had no jurisdiction to attach the debt due from the defendant company and had consequently no jurisdiction to sell it and that by his purchase at such sale the plaintiff did not acquire any right to recover the money. The learned District Judge after discussing the law and facts of the case has recorded his findings in these words:
I fully agree with the conclusions arrived at by the learned Subordinate Judge and hold that the order of attachment was ab initio void and the alleged sale subsequently held gave no right, title or interest to the decree-holder the plaintiff in this case.
3. In this view of the matter both the Courts below have dismissed the plaintiff's suit and the plaintiff has appealed.
4. It has not been seriously pressed that the attachment under Order 21, Rule 46, Civil P. C, of the debt was a valid attachment. But it has been argued that any irregularity in or even absence of attachment does not vitiate the sale and in support of this contention several cases have been cited of which the latest is Naresh Chandra Mitra v. Molla Atul Ha in which all the earlier cases have been
considered. As a pure question of law there can be no dispute that the invalidity or absence of attachment would not invalidate the sale, inasmuch as the order of attachment is only a prohibitory order issued on the judgment-debtor and the public in order to protect the interest of the execution creditor. But this view of the law is of no help to the plaintiff in the present case. In ail those cases the Court had jurisdiction to sell the property. The executing Court, like the Court entertaining a suit (except in case of breach of contract), must have territorial jurisdiction over the subject-matter against which execution is sought. Where it has no such jurisdiction the provisions of Section 89, Civil P. C, must apply, that is to say, the executing Court should send the application for execution to any other Court which has such territorial jurisdiction. The word may" used in Section 39 does not mean that it is in the discretion of the Court which passed the decree either to execute the decree itself or to send the application |for execution to another Court where the property against which execution is sought is situated outside the jurisdiction of the Court which passed the decree. [The discretion given there indicates that the Court should send the application for (execution to another Court where it thinks (that the decree is executable in the way prayed for:
Speaking generally, it is an accepted principle of international jurisprudence that the jurisdiction of a Court in enforcing execution of its decree is restricted by its territorial limitations. That is to say, the jurisdiction of the Court is circumscribed by, and is co-extensive with its territorial limits. Thus a Court desiring to seize or attach the property of a judgment-debtor outside its jurisdiction, and where such property is in the hands of, or the custody of another, also outside the jurisdiction, such property sought to be attached in aid of the execution can only be reached by a regular method of procedure which has been prescribed by the rules of the Civil Procedure Code and similar Codes which prevail in all countries, viz., the decree of the executing Court must be transferred to the local limits of the jurisdiction of the external Court within which the property sought to be attached is for the time being." Per Atkinson, J.. in Bank of Bengal v. Sarat Ch. Mitra [1919] 4 Pat. L.J. 141.
5. If the moveable property such as money against which execution is asked for is not within the territorial limits of the executing Court, the only other way in which that Court may have jurisdiction to execute the decree is when the person against whom execution is sought is or resides within the jurisdiction of that Court. Except whore these or one of these circumstances exist, or exists, the executing Court has no jurisdiction to seize property which is not within its territorial jurisdiction and where the person against whom execution is sought does not reside within its territorial jurisdiction. This point has been settled by the decision in Begg Dunlop & Co. v. Jagannath Marwari [1912] 39 Cal. 104 where the question arose with regard to the validity of attachment of a certain sum of money lying outside the jurisdiction of the executing Court. The learned Judges say:
It is not competent to the 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 a resident within the jurisdiction of that Court.
6. But Mr. Roy Choudhury on behalf of the appellant argues that even though the attachment was bad in law and the Court at Bolpur had no jurisdiction to attach the money in the hands of the defendant, it had still the jurisdiction to sell the debt due to the deceased judgment-debtor. The condition that in order to give jurisdiction to the executing Court the debt must be either within the jurisdiction of the executing Court or the person against whom it is claimed is a resident within its jurisdiction applies equally to attachment and to sale. If a property cannot be attached being outside the jurisdiction of a Court it can neither be sold by that Court. In Surendra Nath v. Bansi Badan [1916] 36 I.C. 457 the view expressed in Begg Dunlop & Co. v. Jagannath Marwari [1912] 39 Cal. 104 was confirmed and it was further observed that an inferior Court should not be allowed to usurp jurisdiction it did not possess, and the order passed by a Court by usurpation of jurisdiction cannot be allowed to stand on a consideration that similar order would have been made on the merits by a Court of competent jurisdiction.
7. In the present case there can be no quarrel about the facts. The debt is due from the company which carries on its business at Calcutta. According to the decision in Begg Dunlop's case [1912] 39 Cal. 104 the location of the debt is where the defendant resides. The debt and the debtor both being outside the jurisdiction of the Bolpur Court, that Court was not competent to sell the debt and the plaintiff did not acquire the right to recover it by his purchase at Court sale.
8. A further question is raised, namely, that under the contract evidenced by the policy money is payable to the legal representatives of Sasi Bhusan at Bolpur and so the Bolpur Court had jurisdiction over it. That question is relevant only with reference to the objection raised on behalf of the respondent that the suit is not maintainable in the Birbhum Court. It makes no difference so far as the consideration of the present question is concerned, as to where the money is payable. The point is where the money was lying when execution was taken. I agree with the learned District Judge in holding that the attachment and sale are both void and that the plaintiff has no title to the money in the hands of the defendant. In this view of the matter it is not necessary to consider whether the Bolpur Court had jurisdiction to entertain the suit. The result is that the appeal is dismissed with costs.
Graham, J.
9. I agree. In my judgment the appeal fails on the ground that the Bolpur Court had no jurisdiction to attach or sell any property outside its territorial jurisdiction. The sale was therefore a nullity and could confer no right or title upon the plaintiff: see Begg Dun-lop & Co. v. Jagannath Marwari [1912] 39 Cal. 104. As. was pointed out in that case the proper procedure for attachment of the policy would have been to transfer the decree to the Court within whose jurisdiction the debtor of the judgment-debtor resided. That course was not adopted. As my learned brother has stated, the case referred to above was subsequently followed in another case in this Court; Surendra Nath Goswami v. Bansi Badan Goswami [1916] 36 I.C. 457.
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