Patna High Court
Sarangdhar Sinha And Ors. vs Mt. Parvati Kuer on 17 January, 1968
Equivalent citations: AIR1968PAT370, 1969(17)BLJR350, AIR 1968 PATNA 370, 1969 BLJR 350 ILR 47 PAT 779, ILR 47 PAT 779
JUDGMENT
1. This appeal by the judgment debtors of Execution case No. 25 of 1966 has been preferred against an order of the executing court rejecting an application under sections 47 and 151 of the Code of Civil Procedure made against an order of attachment dated the 9th December, 1966, which reads as follows:
''..... Issue attachment of the shares mentioned in the execution petition fixing 10-1-67 for return. D. Hr. must file forms of attachment at once".
In pursuance of this order, prohibitory orders under Order 21, Rule 46 of the Code were issued against the judgment debtors and the secretaries of the companies or corporations whose shares were mentioned in the execution petition. Thereafter, two petitions were filed under Sections 47 and 151 -- one by judgment debtor Sarangdhar Sinha and the other by the other judgment debtors, who are heirs of Ramji Sinha, a deceased brother of Sarangdhar Sinha and Rai Bahadur Ram Ran Vijay Sinha, the deceased husband of the decree-holder. Both these petitions were numbered as Miscellaneous case 11 of 1967 in the executing court. By these petitions, the validity of the order of attachment was challenged on several grounds. The court below rejected the grounds and dismissed the petitions.
2. In this court, only three grounds were urged by Mr. Balbhadra Pd. Singh on behalf of the judgment debtors appellants, viz. (1) the impugned order of attachment is vitiated on account of lack of territorial jurisdiction in the executing court to effect attachment of the shares which are admittedly held in the companies registered outside the State of Bihar; (2) the executing court had no jurisdiction to attach the shares standing in the name of deceased person; and (3) the prohibitory order, in pursuance of the order of attachment, was not affixed in the court house in the instant case.
3. Order 21, rule 46 reads as follows:
"46. (1) In the case of-
(a) a debt not secured by a negotiable instrument,
(b) a share in the capital of a corporation
(c) other movable property not in the possession of the judgment debtor, except property deposited in, or in the custody of, any court, the attachment shall be made by a written order prohibiting-
(i) in the case of the debt, the creditor From recovering the debt and the debtor from making payment thereof until the further order of the court:
(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
(iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment debtor (2) A copy of such order shall be affixed on some conspicuous part of the courthouse, and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same (3) A debtor prohibited under Clause (i) of Sub-rule (1) may pay the amount of his debt into court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same".
As the instant case refers to only shares, the relevant provision of Sub-rule (1) of that rule lays down that in the case of a share in the capital of a corporation, the attaehment shall be made by a written order prohibiting the person in whose name the share may be standing from transferring the same or receiving any dividend thereon. It must be made clear here that the provision regarding attachment of a debt in this rule is different and it must not be confused with the provision regarding the attachment of a share. It will be noticed that Sub-rule (2) requires a copy of the prohibitory order to be affixed on some conspicuous part of the court-house and another copy to be sent to the proper officer of the corporation to which the share appertains. Sub-rule (3) is not relevant for our purpose, as it relates to payment of a debt by the debtor into court. It is well settled that the formalities contained in Sub-rule (2) must be strictly followed, inasmuch as they are mandatory. (See Keshavlal v. Bibi Soghra; AIR 1934 Pat 619; and Narendra Prasad v Janki Kuer, AIR 1947 Pat 385)
4. So far as the ground regarding non-affixation of the prohibitory order on a conspicious part of the court-house is concerned, no evidence appears to have been adduced on that point, and, in the absence of any evidence, the presumption under Section 114 (e) of the Evidence Act that the proceedings of the court were validly done would ordinarily apply. Moreover, we do not find any reference to this obiection in the impugned order of the court below either; and even in the grounds of appeal it is not stated that the judgment debtors wanted to adduce evidence on this point but were not allowed by the court below to do so. It is, therefore, not possible for this court to go into this question
5. It would be convenient to take up the other two ground? urged by Mr Singh together From the execution petition, it appears that there were seven items of shares in the list of properties to be attached appertaining to the different companies, but all registered outside the State of Bihar, Against each item it is written that the shares stood in the name of Rai Bahadur Ram Ran Vijay Singh and now belong to judgment debtors Sarangdhar Sinha and others. From the letters of different companies received in the executing court, which are on the file, it appears that the shares still stand in the name of the Rai Bahadur who died long ago, except 500 ordinary shares of the British India Corporation Ltd. Kanpur, which stand in the name of Sarangdhar Sinha and the deceased Ramji Sinha, Sub-rule (1) requires the attachment of a share to be made by a prohibitory order to the person in whose name the share may be standing from transferring the same or receiving any dividend thereon. It is manifest from this language of Clause (ii) of Sub-rule (1) that the prohibitory order must be made against an existing person. Until somebody is substituted in the place of the Rai Bahadur or in the place of Ramji Sinha in the books of the companies in respect of the shares standing in the their names, it is apparent that no prohibitory order can be made against any person in respect of the shares standing in the names of the two deceased persons. In the case of the aforesaid 500 ordinary shares of the British India Corporation Ltd. the prohibitory order could, of course, be issued under Sub-rule (1) in respect of the interest of Sarangdhar Sinha, whatever that interest may be. It is admitted that Sarangdhar Sinha resides within the jurisdiction of the court below. So far, we have dealt with the prohibitory orders on the judgment debtors.
6. A copy of such a prohibitory order is also required to be sent to the proper officer of the company concerned under Sub-rule (2) of rule 46. In order to appreciate this, it is necessary to refer to the form of the prohibitory order prescribed in Appendix F of the Civil Procedure Code itself. It is Form No. 18 and it reads as follows:
"No. 18Attachment in Execution.
Prohibitory order, where the Property consists of shares in the capital of a Corporation (Order 21, Rule 46) To (Title) Secretary of Corporation.
Whereas has failed to satisfy a decree passed against on the day of 19, in suit No. of 19, in favour of, for Rs : It is order ed that you, the defendant, be and you are hereby, prohibited and restrained, until the further order of this court, from making any transfer of shares in the aforesaid Corporation, namely or from receiving payment of any dividends thereon; and you, the Secretary of the said Corporation, are hereby prohibited and restrained from permitting any such transfer or makine any such payment.
Given under my hand and the seal of the court, this day of 19. Judge".
Mr. Singh submitted that even though the judgment debtors, in whose names the shares might stand, be residents within the territorial jurisdiction of the executing court, that court cannot send a copy of the prohibitory order under Sub-rule (2) of rule 46 to the officers of the companies registered outside the State of Bihar: and in support of this contention, he relied on three decisions, viz. Hari Das v. National Insurance Co. Ltd. AIR 1932 Cal 213, Bank of Bengal v. Sarat Chandra, AIR 1918 Pat 126 and Baluswami v. Official Assignee Madras AIR 1939 Mad 811. In the Patna case, the respondent had obtained a decree for money against one Raghunath Prasad and he sought to attach certain property alleged to be the property of the judgment debtor in the hands of the Bank of Bengal, the appellant. This property was the security money of Raghunath Prasad in the bank, on the strength of which the latter had been taken in its service as a treasurer. This security was in the shape of Government paper money in the custody of the bank. The bank was prohibited by the executing court and restrained by a further order from parting with, or disposing of, this property in its possession to any other person. The contention of the bank was that the property sought to be attached was outside the jurisdiction of the executing court i.e., the court of the Patna Subordinate Judge. Atkinson J. who delivered the judgment on behalf of the court, observed:
"Speaking generally, it is an accepted principle of international jurisprudence that the jurisdiction of a court in enforcing execution of its decrees is restricted by its territorial limitations. That is to say the jurisdiction of a court is circumscribed by and 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 custody of another, also outside the jurisdiction such property sought to be attached in aid of the executing court can only be reached by a regular method of procedure which has been proscribed by the rules of 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. This rule of law only applies when the two following facts concur; (1) when the property sought to be attached is bona fide without the jurisdiction of the original court whose decree is sought to be enforced, and (2) when the property sought to be attached is in the hands of a third party not amenable to or permanently residing within the jurisdiction of the executing court."
His Lordship relied on a decision of the Calcutta High Court in Begg. Dunlop Co. v. Jagannath, (1911) 39 Cal 104. The objection of the Bank of Bengal was overruled on a different ground viz, that it had a branch at Patna also. But Mr. Singh relied on the observation of Atkinson, J., quoted above. In the Calcutta decision, the aforesaid observation has been reproduced and, relying upon the Patna case as also on the earlier Calcutta case of Begg, Dunlop & Co; (1911) ILR 39 Cal 104 it was held bv a bench of the Calcutta High Court that the court of Bolpur had no jurisdiction to attach or sell the amount payable under an insurance policy. In that case, one S. B. Bhattacharya, who had insured his life with the defendant company for a certain amount, had borrowed some money from the plaintiff, who obtained a decree for the amount against his legal representatives after his death. The plaintiff decree holder put that decree into execution in the Bolpur court which had passed the decree and the Bolpur court attached the amount under the policy under Order 21, Rule 46 and subsequently sold it. The Calcutta High Court said that, if the moveable property such as money against which execution is asked for, is not within the territorial limits of the executing court, and 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. The decision in the Madras case is also to the same effect. But all these cases were in respect of a garnishee i. e., the judgment debtor was a creditor of another person, and, in execution of a mony decree, the decree holder wanted to attach or attach and sell the amount of the debt or the amount payable by that person to the judgment debtor creditor. In other words, these cases were governed by Clause (1) of Sub-rule (1) of Rule 46 which lays down that the attachment shall be made by a written order prohibiting the creditor (i.e. the judgment debtor of the decree in execution) from recovering the debt (of the judgment debtor-creditor) and the debtor from making payment thereof until the further order of the court. It will be noticed that under Clause (ii) of that sub-rule which relates to the case of a share, the attachment is made bv a written order prohibiting only the person in whose name the share may be standing from transferring the same or receiving any dividend thereon. We are unable to agree with Mr. Singh that the dividend referred to therein is a debt within the meaning of Clause (ii) of the sub-rule. Of course, in pursuance of Sub-rule (2), a copy of these two classes of orders has to be sent to the garnishee in the first case and to the proper officer of the corporation in the second case; but the distinction is manifest from the language used in clauses (i) and (ii). Form 18 of Appendix F, which has been reproduced earlier, of course, states that the defendant (i.e. judgment debtor) as well as the Secretary of the corporation is prohibited from doing certain acts; but the contents of the form are controlled by the substantive provision of the rule. In this connection, it may be noticed that Order 48, Rule 3, merely lays down that the forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned; but it does not indicate that the contents of the form shall overrule the substantive provision in rule 46. Mr. Chatterji, therefore, rightly contended that, in view of Sub-rule (2) of Rule 46, a copy of the prohibitory order is sent to the proper officer of the corporation, mainly, for informing the corporation of the prohibitory order made against the judgment debtor. Hence, the contention of Mr. Singh, that the issuance of the copy of the prohibitory order to the officers of the different corporations and companies registered outside the State of Bihar was beyond the jurisdiction of the executing court situated at Patna, must be rejected.
7. In view of the foregoing findings, it must be held that the attachment made under Rule 46 of Order 21 of the Code of Civil Procedure in the instant case was bad, except to the extent of Sarangdhar Sinha's interest in 500 ordinary shares of the British India Corporation Ltd. with its registered office at Kanpur. The appeal is, therefore, allowed and the order of attachment is set aside, except in respect of the interest of Sarangdhar Sinha in the said 500 shares. In the circumstances of the case, the parties will bear their own costs throughout.