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Case Number

No. 842 of 1977

Advocates

Mukul Prokash Banerjee
Sanat Kumar Seal
Saktinath Mukherjee and Bhaskar Ghose

Judges

M.M Dutt
D.C Chakravorti, JJ.

Acts

provision of Order 38, rule 5 of the present Code of 1908.
Order 38, rule 5 of the Code of Civil Procedure, 1908
provision of Order 38, rule 5 of the present Code,
Order 38, rule 5 of the Code of Civil Procedure
provisions of S. 136.The Rule
Order 38, rules 5
Order 38, rule 5

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Smart Summary

Judgment Summary: M.M. Dutt, J. (with D.C. Chakravorti, J. concurring)

Factual and Procedural Background

This Rule was instituted at the instance of defendant no. 1 challenging Order No. 2 dated 16 February 1977 of the Subordinate Judge, 4th Court, Alipore. The underlying suit was instituted by the plaintiff (opposite party no. 1) against the petitioner and others for recovery of Rs. 38,951.10. The plaintiff filed an application under Order 38, Rule 5 of the Code of Civil Procedure (CPC) seeking attachment before judgment, alleging that the defendants were avoiding payment of the plaintiff’s dues, were about to dispose of or remove property from the local limits of the Court’s jurisdiction, and were attempting to receive payment from the Additional Chief Engineer, Bandel Thermal Power Station, payable to the firm “Sarkar & Sarkar” (of which the petitioner is the sole owner) in respect of a construction contract.

The impugned order directed issuance of notices to the defendants and passed a conditional order for attachment of Rs. 41,000 lying in the hands of the Additional Chief Engineer of Bandel Thermal Power Station, a sum admitted to be situated outside the territorial jurisdiction of the Subordinate Judge who made the order.

Legal Issues Presented

Whether an attachment before judgment under Order 38, Rule 5 CPC can be made in respect of property situate outside the territorial jurisdiction of the Court directing such attachment.
If attachment of property outside the Court's territorial limits is permissible, whether it can be done directly by the Court or only by following the procedure laid down in Section 136 of the CPC (i.e., by transmitting the order to the District Court within whose local limits the property is situate), or by transfer of a decree under Section 39 for execution.

Arguments of the Parties

Petitioner's (Defendant No. 1) Arguments — Mr. Mukul Prakash Banerjee

A Court has no jurisdiction to direct attachment of property situate beyond its territorial jurisdiction.
Reliance on earlier decisions of the same Bench: Begg, Dunlop & Co. v. Jagannath Marwari (16 CWN 402) and Surendra Nath Goswami v. Bansi Badan Goswami (22 CWN 160) which, it was submitted, support the principle that a Court cannot attach property situated outside its jurisdiction in attachment-before-judgment proceedings.
Reference to earlier authorities decided under the Code of 1882 (and earlier statutes) that were said to lay down the same limitation on attachment-before-judgment.

Plaintiff's (Opposite Party No. 1) Arguments — Mr. Sakti Nath Mukherjee

Submission that the omission of the words “any portion of his property within the jurisdiction of the Court” from the earlier Code provision (S.483 of the 1882 Code) when Order 38, Rule 5 was enacted indicates legislative intent to permit attachment of property situate outside the Court's jurisdiction under the present Code.
Reliance on decisions that dissented from the Surendra Nath Goswami view, specifically Chaudhuri Kanhya Ram v. Firm Dina Nath Hardial Mall (AIR 1926 Lahore 330) and Chimandas Methuram v. Manager Mahadevappa Firm (AIR 1961 Andhra Pradesh 417), which held attachment-before-judgment could extend to property without the jurisdiction.
Contended that the principles laid down in Surendra Nath Goswami were not correctly stated in that case because of the omission noted above.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Begg. Dunlop & Co. v. Jagannath Marwari, 16 CWN 402	Whether an executing Court can attach a debt payable to a judgment-debtor by a non-resident outside its jurisdiction; consideration of limits on attachment/execution outside territorial jurisdiction.	The court treated Begg, Dunlop as authority that an executing Court is not competent to directly attach property or debts situated entirely outside its jurisdiction and that execution should proceed by transfer under Section 39; this case supports the view that direct attachment outside jurisdiction is impermissible.
Surendra Nath Goswami v. Bansi Badan Goswami, 22 CWN 160	Ad-interim order for attachment before judgment of money lying outside the Court’s jurisdiction; whether such an order is valid without following Section 136 procedure.	The court confirmed that the interim order in that case was without jurisdiction because the Subordinate Judge directly attached money outside his jurisdiction without following Section 136; the present court held Surendra Nath Goswami should be read with Begg, Dunlop and effectively endorsed the procedural limitation.
Balaram v. Solano, 8 BLR 335 (1872)	Authority cited among earlier decisions holding attachment before judgment could not be made of property outside jurisdiction.	Referred to as part of a number of older decisions establishing the principle that attachment before judgment could not be made by a Court of property situate outside its jurisdiction.
Kedar Nath v. Luchman, 1 CLR 336 (1878)	Construes “property” in earlier code provisions to mean property within the jurisdiction of the Court making the order.	Relied on to support the interpretation that references to “property” in attachment provisions were to property within the Court’s reach (i.e., within jurisdiction).
Krishnasami v. Engel, ILR 8 Mad. 20 (1884)	One of the decisions under the earlier Code (1882) cited for the limitation on attachment-before-judgment outside jurisdiction.	Referred to as part of the body of precedent under the Code of 1882 holding that attachment before judgment could not be made of property outside the Court's jurisdiction.
Raja v. Jankibai, 5 Bom LR 570 (1903)	Earlier authority on attachment-before-judgment jurisdictional limits.	Referred to among earlier cases supporting the limited territorial scope of attachment-before-judgment under the earlier statutory scheme.
Dawood v. Moona, PJLB 56 (1894)	Earlier authority regarding attachment-before-judgment and jurisdictional reach.	Included in the list of precedents cited to show historical judicial reluctance to permit direct attachment outside jurisdiction.
Pannu v. Sathappa, 1 LBR 310 (1902)	Another earlier decision under the 1882 Code relevant to attachment-before-judgment.	Cited as part of the historical line of decisions limiting attachment-before-judgment to property within jurisdiction.
Siva Swami v. Soleman, 3 LBR 255 (1907)	Earlier authority on attachment-before-judgment under the 1882 Code.	Referred to as one of several precedents supporting the limitation that attachment-before-judgment should not be directed against property outside the Court's jurisdiction.
Kin Kin v. Nga Syaw UBR 13 (1907)	Listed among historical authorities concerning attachment jurisdiction.	Mentioned as part of the series of decisions under earlier codes indicating limits on attachment before judgment.
Chaudhuri Kanhya Ram v. Firm Dina Nath Hardial Mall, AIR 1926 Lahore 330	Authority adopting view that attachment before judgment could be of property within or without the Court’s jurisdiction (i.e., dissenting from the restrictive view).	Cited by plaintiff's counsel as supporting the proposition that omission of certain words from the present Code shows legislative intent to permit attachment beyond territorial limits; the court recorded this as a dissenting view.
Chimandas Methuram v. Manager Mahadevappa Firm, AIR 1961 Andhra Pradesh 417	Authority that dissented from Surendra Nath Goswami and held that attachment before judgment could extend beyond territorial jurisdiction.	Noted by the court as another decision adopting the permissive view relied upon by the plaintiff; the court recorded these authorities but declined to adopt their approach over the established reading of older authorities and procedural provisions.

Court's Reasoning and Analysis

The court set out the statutory provision at issue (Order 38, Rule 5 CPC) and identified the core jurisdictional question. It examined the legislative and judicial history:

Under the earlier Code of 1882, Section 483 expressly limited the power of attachment before judgment to "any portion of his property within the jurisdiction of the Court"; corresponding provisions in earlier Codes were construed by judges (e.g., Pontifex J. in Kedar Nath v. Luchman and Phear J. in Balaram v. Solano) as referring to property within the Court’s effective reach.
Although the present provision (Order 38, Rule 5 CPC) omits the specific phrase "within the jurisdiction of the Court," earlier decisions under older Codes nevertheless established the principle that a Court could not directly issue orders attaching property situated entirely outside its jurisdiction.
The court relied on Begg, Dunlop & Co. v. Jagannath Marwari to underline that an executing Court is not competent to directly attach a debt or property lying outside its jurisdiction; instead, execution must proceed by transferring the decree to the Court within whose jurisdiction the property lies (Section 39 CPC) which may then take steps necessary for execution, including attachment.
Surendra Nath Goswami was interpreted consistently with Begg, Dunlop: a Subordinate Judge who directly attached money lying outside his jurisdiction without following the procedure of Section 136 was held to have acted without jurisdiction. The correct procedure for attachment of property outside the issuing Court's jurisdiction is to follow Section 136 (send order to the District Court where the property is situate with provision for probable costs) rather than issuing a direct prohibitory attachment order.
The court rejected the submission that the omission of the earlier limiting phrase in Order 38, Rule 5 alone demonstrates legislative intent to allow direct attachment beyond jurisdictional limits, noting that historical precedent and the structure of execution provisions (Sections 38 and 39 CPC) support the need for inter-court procedure (transfer or Section 136 transmission) when property lies outside the local limits of the issuing Court.
Applying these principles to the instant matter: the impugned order conditionally directed attachment of money lying outside the issuing Court's jurisdiction. Because the lower Court's attachment application had not yet been finally heard and it was not established whether any interim attachment had in fact been effected, the Division Bench proceeded on the basis that no effective interim attachment had been made. The court made clear that any direct attachment effected without following Section 136 would be bad and liable to be set aside.
Given the absence of complete material about whether attachment had been effected, the Division Bench declined to interfere at that interlocutory stage with the impugned order, while expressly reminding the Subordinate Judge that if, after hearing, attachment of property outside the jurisdiction is deemed necessary it must be done only in accordance with Section 136.

Holding and Implications

Core Ruling: The Rule was disposed of without any order as to costs; the Division Bench declined to interfere at the interlocutory stage with the Subordinate Judge's conditional order but held that any attachment of property situate outside the local limits of the issuing Court can be effected only by following the procedure prescribed by Section 136 of the Code of Civil Procedure (or by transfer/execution mechanisms such as Section 39 where appropriate). Any direct prohibitory order attaching property outside the Court's jurisdiction without following that procedure is without jurisdiction and shall be set aside.

Implications:

The petitioner remains able to appear before the Court below and show cause against the attachment-before-judgment application.
If the Subordinate Judge, after hearing the parties, considers it necessary to attach property of the petitioner lying outside the Court's jurisdiction, the attachment must comply with Section 136 CPC (i.e., transmission to the District Court within whose limits the property is situated and provision for costs), and a direct prohibitory order attaching property situated outside jurisdiction is impermissible.
The decision resolves the instant interlocutory dispute without granting the petitioner immediate relief and confirms the procedural limitation on direct territorial attachments; it does not purport to lay down a new principle of law beyond the application and reaffirmation of existing statutory procedure and precedent.

Disposition: Rule disposed of without any order as to costs. Records to be sent down at once. D.C. Chakravorti, J. concurred.

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Balai Kumar Sarkar v. Bimal Chandra Sarkar & Ors.

M.M Dutt, J.:— This Rule is at the instance of the defendant no. 1 and it is directed against order no. 2 dated February 16, 1977 of the Subordinate Judge, 4th Court, Alipore. The suit out of which this Rule arises has been instituted by the plaintiff-opposite party no. 1 against the petitioner and others for the recovery of the sum of Rs. 38,951.10. The opposite party no. 1 filed an application under Order 38, rule 5 of the Code of Civil Procedure for attachment before judgment, inter alia alleging therein that the defendants were avoiding payment of the plaintiff's dues and with intent to obstruct or delay the execution of the decree that would be passed in the suit against the defendants, they were about to dispose of their assets and had removed and/or had been removing their property from the local limits of the jurisdiction of the Court. Further, it was alleged that the defendants were trying to receive payment of the money from the Additional Chief Engineer, Bandel Thermal Power Station payable to the firm “Sarkar & Sarkar” of which the petitioner is the sole owner, in respect of the construction of the Training Institute-cum-Trainees Hostel at the said Power Station. By the impugned order, the learned Subordinate Judge directed issue of notices upon the defendants and also passed a conditional order of attachment of the sum of Rs. 41,000/- lying in the hands of the Additional Chief Engineer of the Bandel Thermal Power Station which is admittedly outside the jurisdiction of the Court of the learned Subordinate Judge.

2. The principal question that is involved in this Rule is whether an attachment before judgment can be made of a property situate outside the jurisdiction of the Court directing such attachment. Order 38, rule 5 of the Code of Civil Procedure, 1908 is as follows:

“5(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.”

3. It is contended by Mr. Mukul Prakash Banerjee, learned Advocate appearing on behalf of the petitioner that a Court has no jurisdiction to direct attachment of property situate beyond its territorial jurisdiction. In support of this contention, he has placed reliance on two decisions of this Court by the same Bench, namely, Begg. Dunlop & Co. v. Jagannath Marwari, 16 CWN 402 and Surendra Nath Goswami v. Bansi Badan Goswami, 22 CWN 160. In the first mentioned case, the question that came up for consideration before the Bench was whether it was competent for a Court, in execution of a decree for money, to attach at the instance of decree-holder a debt payable to the judgment-debtor by a non-resident outside the jurisdiction. In that case, the learned Subordinate Judge held that, as in the case of an attachment before judgment, the writ could be issued in respect of properties outside jurisdiction, the same doctrine ought to be applied to cases of attachment in execution proceedings. Sir Ashutosh Mookerjee who delivered the judgment of the Bench, though observed that there was no analogy between the two classes of cases, yet his Lordship was not inclined to accept the view that an attachment before judgment could be made by a Court of a property situate outside its jurisdiction. His Lordship referred to a number of decisions laying down that attachment before judgment could not be made by a Court of a property situate outside the jurisdiction. Those decisions are Balaram v. Solano, 8 BLR 335 (1872); Kedar Nath v. Luchman, 1 CLR 336 (1878); Krishnasami v. Engel, ILR 8 Mad. 20 (1884); Raja v. Jankibai, 5 Bom LR 570 (1903); Dawood v. Moona, PJLB 56 (1894); Pannu v. Sathappa, 1 LBR 310 (1902); Siva Swami v. Soleman, 3 LBR 255 (1907) and Kin Kin v. Nga Syaw UBR 13 (1907). Of the above decisions, except the first two, the rest were under the Code of Civil Procedure, 1882. The corresponding provisions for attachment before judgment in the Code of 1882 were Ss. 483 and 484 which are as follows:

“483. If at any stage of any suit the plaintiff satisfies the Court by affidavit or otherwise that defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(a) is about to dispose of the whole or any part of his property, or to remove the same from the jurisdiction of the Court in which the suit is pending, or

(b) has quited the jurisdiction of the Court, leaving therein property belonging to him,

the plaintiff may apply to the Court to call upon the defendant to furnish security to satisfy any decree that may be passed against him in such suit and, on his failing to give such security, to direct that any portion of his property within the jurisdiction of the Court shall be attached until further order of the Court.

The application shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

484. If the Court, after examining the applicant and making any further investigation which it thinks fit, is satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of any decree that may be passed against him in the suit, or that he has with such intent quited the jurisdiction of the Court, leaving therein property belonging to him, the Court may require him, within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

The Court may also in the order direct the conditional attachment of the whole or any portion of the property specified in the application.”

In this connection another provision of the Code of 1882 needs to be mentioned and that was S. 648 which provided the procedure when a person to be arrested or a property to be attached was outside the local limits of the jurisdiction of the Court issuing a warrant of arrest or an order for attachment. Under that section a copy of the Warrant or the order was required to be sent to the District Court within the local limits of whose jurisdiction such person resided or the property was situate, and on receipt of the same the District Court would cause the arrest or attachment to be made.

4. The same view has been taken by the same Bench in Surendra Nath Goswami v. Bansi Badan Goswami, 22 CWN 160. In that case, the learned Subordinate Judge made an ad-interim order for the attachment before judgment of the money lying in the hands of the officer of the East India Railway outside the jurisdiction of the Court and payable to the judgment-debtor also outside the jurisdiction. On service of notice upon the officer, the money was, however, transmitted to the Subordinate Judge. It was held that the interim order for attachment was entirely without jurisdiction. It appears that in that case the Subordinate Judge did not follow the procedure laid down in the provision of S. 136 of the Code of 1908, but directly attached the debt due to the judgment-debtor and had the money brought to his Court. It, therefore, follows from the Surendra Nath Goswami's case that if a Court wants to attach before judgment a property which is situate outside its jurisdiction it should follow the procedure laid down in S. 136 of the present Code, that is, by sending the order for attachment to the District Court within the local limits of whose jurisdiction the property is situate together with the probable amount of the costs of attachment. But a Court cannot directly make such an attachment by issuing a prohibitory order.

5. Mr. Sakti Nath Mukherjee, learned Advocate appearing on behalf of the plaintiff-opposite party submits that as the words “any portion of his property within the jurisdiction of the Court” which were in S. 483 of the Code of 1882, having been dropped from the provision of Order 38, rule 5 of the present Code, it is the intention of the legislature that the Court can attach property situate beyond its jurisdiction. He also submits that this distinction has not been noticed by Sir Asutosh Mookerjee in the case of Surendra Nath Goswami v. Bansi Badan Goswami (supra) as a result of which it was held in that case that the Court had no jurisdiction to attach property situate outside its jurisdiction. The Lahore High Court in Chaudhuri Kanhya Ram v. Firm Dina Nath Hardial Mall, AIR 1926 Lahore 330 and the Andhra Pradesh High Court in Chimandas Methuram v. Manager Mahadevappa Firm AIR 1961 Andhra Pradesh 417 dissented from the view taken in Surendra Nath Goswami v. Bansi Badan Goswami (supra) and relied on the omission of the said expression from Order 38, rule 5 and held that attachment before judgment could be of property within or without the jurisdiction of the Court. There are other decisions which have expressed the same view. It is contended by Mr. Mukherjee that in Surendra Nath Goswami's case, the principles of law as to attachment before judgment have not been correctly laid down.

6. It is apparent that under S. 483, the power of the Court to direct attachment before judgment was limited to property situate within the local limits of the jurisdiction of the Court. The expression “any portion of his property within the jurisdiction of the Court” in S. 483 has been omitted from the provision of Order 38, rule 5 of the present Code of 1908. So in spite of the provision of S. 648, it was laid down in the above decisions under the Code of 1882 that a Court had no jurisdiction to direct attachment before judgment of property situate outside its jurisdiction. In S. 483 of the Code of 1877, the said expression was not there, but Pontifex J. in Kedar Nath v. Luchman (supra) construed the word “property” in clauses (a) and (b) of S. 483 as property situate within the jurisdiction of the Court making an order for attachment. In the corresponding provision of S. 81 of the Code of 1859, the said expression was also not there, but in Balaram v. Solano (supra), Phear J. held that the property spoken of in S. 81 was property within the jurisdiction of the Court, namely, property which, when the decree was made, the Court would be able to reach and make available in satisfaction of the decree.

7. In Begg, Dunlop's case referred to above, the Bench was considering whether a Court in execution of a decree for money could attach a debt payable to the judgment-debtor not residing within the jurisdiction of the Court. It was held that the Court was not competent to attach such a debt. It was not laid down in that case that a property situate outside the jurisdiction of a Court could not be attached in execution of a decree, but what was laid down was that such property could not be attached by that Court directly. In that case, Sir Ashutosh Mookerjee referred to the provisions of Ss. 38 and 39 of the present Code of 1908 and observed that they plainly indicated the acceptance by the legislature of the general principles that no Court could execute a decree in which the subject-matter of the suit or of the application for execution was a property situated entirely outside the local limits of its jurisdiction. Under S. 39 of the Code of 1908, a decree can be transferred for execution to another Court in respect of the person or property of a judgment-debtor within the jurisdiction of that Court. So if a decree has to be executed in respect of a property situate outside the local limits of the jurisdiction of the Court which passed it, the decree may be sent to the Court within whose jurisdiction the property is situate and that Court will take steps for the execution of the decree including that by attachment of the property, if necessary. The Court which passed the decree cannot, it is manifest, attach a property in execution of the decree not situate within its jurisdiction but within the jurisdiction of another Court. On the basis of the above principles their Lordships in Beg, Dunlop's case held that in execution of a decree a Court cannot attach a debt payable to the judgment-debtor by a non-resident outside the jurisdiction. Although in that case, Sir Ashutosh Mookerjee referred to some decisions mentioned above which were mostly decisions under the Code of 1882, the real reason which seems to have weighed with his Lordship was that a Court had no jurisdiction to attach before judgment a property situate outside its jurisdiction.

8. It has not been laid down in Surendra Nath Goswami v. Bansi Badan Goswani (supra) that property lying outside the jurisdiction of the Court cannot at all be attached, but it can be attached by the Court by following the provision of S. 136. In our view, Surendra Nath Goswami's case has to be read along with Begg, Dunlop's case referred to above, where it has been clearly pointed out that an executing Court cannot directly attach a property lying outside its jurisdiction, but it can do so by transferring the decree to the Court within whose jurisdiction the property is situate in accordance with the provisions of S. 39. The same principle would also apply to an order for attachment before judgment as provided by Order 38, rules 5 and 6. In our view, therefore the principle of law has been correctly laid down in the case of Surendra Nath Goswami v. Bansi Badan Goswami (supra).

9. In the instant case, by the impugned order the Court below has passed a conditional order for attachment of the money lying in the hands of the Additional Chief Engineer, Bandel Thermal Power Station outside the jurisdiction. The application for attachment before judgment has not yet been heard and disposed of by the Court below. It is also not known whether any attachment has been effected in terms of the said conditional order for attachment. If any such attachment has been made by the issue of any prohibitory order by the Court below without complying with the provision of S. 136, it must be held to be bad and shall stand set aside. As the material facts are not before us, we would proceed on the basis that no interim attachment has yet been actually made. In these circumstances, we are not inclined to interfere with the impugned order at this stage, for the petitioner can appear before the Court below and show cause against the prayer for attachment before judgment. It must be made clear that if after hearing the parties the Court below is of the view that any property of the petitioner lying outside the jurisdiction is required to be attached it can do so only in accordance with the provisions of S. 136.

The Rule is, accordingly, disposed of without any order for costs. Let the records be sent down at once.

D.C Chakravorti, J.:— I agree.

Rule disposed of with direction.

Balai Kumar Sarkar v. Bimal Chandra Sarkar & Ors.

Judgment Summary: M.M. Dutt, J. (with D.C. Chakravorti, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Defendant No. 1) Arguments — Mr. Mukul Prakash Banerjee

Plaintiff's (Opposite Party No. 1) Arguments — Mr. Sakti Nath Mukherjee

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Balai Kumar Sarkar v. Bimal Chandra Sarkar & Ors.

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