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  • Pugh, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The matter concerns an application to re-consider (either by review or as a fresh application) an earlier order in a divorce proceeding refusing an attachment before judgment. The original application was made at 4:30 p.m. at the rising of the Court, and the judge initially refused the application, having dealt with it "in a somewhat cursory way" and stating he had "never knew of an attachment before judgment in a divorce case."

The present application was argued by learned counsel (referred to as Mr. Hill), who acknowledged that such an order had not, so far as he suggested, previously been made in divorce proceedings and described the matter as one of first impression. The petitioner's attorneys are listed as Leslie & Hinds. The ultimate procedural disposition recorded in the opinion is "Application refused."

Legal Issues Presented

  1. Whether an attachment before judgment can be ordered in proceedings under the Divorce Act.
  2. Whether section 45 of the Divorce Act (which provides that proceedings under the Act shall be regulated by the Code of Civil Procedure) imports the Code of Civil Procedure in its entirety for divorce jurisdiction, or whether section 7 (requiring relief to be as nearly conformable as possible to English Divorce Court principles and rules) limits the scope of such application.
  3. Whether seeking an attachment before judgment is a matter of "procedure" (governed by the Code of Civil Procedure under section 45) or a matter of "relief" (and thus governed by section 7's direction to follow principles and rules conformable to the English Divorce Court).

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. Hill)

  • Section 45 of the Divorce Act makes the Code of Civil Procedure applicable to proceedings under the Divorce Act; therefore procedural remedies available under the Code should be available in divorce proceedings.
  • The application for attachment before judgment is a procedural matter (an incident of procedure) rather than a matter of relief; consequently, section 45 governs and the petitioner is entitled, in principle, to seek attachment before judgment.
  • Section 7 (which refers to conformability with English Divorce Court principles and rules) should be disregarded for this purpose because it relates only to relief, not procedure.

The opinion does not contain a detailed account of any distinct, developed arguments advanced on behalf of the respondent or co-respondent.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court considered the competing statutory provisions and the character of the relief sought:

  1. Characterisation of the remedy: The judge rejected the petitioner's central contention that attachment before judgment is purely procedural. The court reasoned that asking to seize a respondent's property prior to obtaining a decree is "purely a matter of relief" because it confers a right on one party before any decree is obtained. By contrast, the judge explained, the "way in which a decree is executed, after you have obtained it" is procedural.
  2. Relation between section 45 and section 7 of the Divorce Act: On the basis that the challenged relief is one of relief (not procedure), section 7 — which directs courts to give relief conformable, as nearly as may be, to the principles and rules of the English Divorce Court — must be given effect. Thus the Code of Civil Procedure may not be applied "wholesale" simply because section 45 says proceedings shall be regulated by the Code.
  3. Practical illustrations: The judge illustrated the danger of applying the Code in full by suggesting that, if the Code were applied wholesale, applications such as appointing a receiver to "take charge of the wife" or seeking injunctions against the co-respondent visiting the wife might be entertained — outcomes the judge found inappropriate in the divorce jurisdiction. He therefore concluded that parts of the Civil Procedure Code (specifically Order XXXVIII, rules 5 and 6, as mentioned) "have no application in divorce proceedings."
  4. Factual sufficiency to support an order: The petitioner sought to infer an intent by the co-respondent to defeat or delay execution of any future decree from the timing and conduct alleged (the respondent meeting the co-respondent in London and subsequent disposal of certain shares). The court found such inferences equivocal: the same facts could be consistent with a determination to establish a home with the respondent abroad and not return to India. Because the necessary facts showing an intent to defeat or delay execution were not proved to the judge's satisfaction, the factual basis required to support an attachment before judgment was lacking.
  5. Practical consequence and motive: The court acknowledged one practical consequence if such an attachment were ordered — the Court could compel the co-respondent to make a settlement of any damages that might be awarded to the wife. The judge also observed (factually noted in the petition) that the petitioner is described as a "colliery proprietor" and is "a very rich man," such that costs likely would not influence his conduct; the judge suggested the petitioner's application may have been motivated by natural annoyance rather than by a substantive need to secure assets for future relief.
  6. Conclusion from analysis: On both legal and factual grounds — (a) the characterisation of the order as relief governed by section 7 and not as mere procedure under section 45, and (b) lack of proved facts necessary to justify an attachment before judgment — the court declined to alter the prior order or to make a fresh order for attachment before judgment.
  7. Limitation on findings: The judge expressly stated that his observations about the respondent and co-respondent are not to be taken as any final findings about their conduct; they may have complete answers. The court was only addressing the case as presented by the petitioner in argument.

Holding and Implications

APPLICATION REFUSED

Holding (direct effect): The court refused the petitioner's application to re-consider and declined to order attachment before judgment in the divorce proceeding; the judge also declined to alter his earlier order refusing such relief.

Implications: The immediate consequence is that no attachment before judgment was granted and the petitioner's request remains denied. The court's reasoning rested on (i) the classification of pre-judgment attachment as a form of relief that must be assessed in light of section 7 of the Divorce Act (requiring conformity to English Divorce Court principles where applicable), and (ii) the absence of sufficient proven facts to justify such an extraordinary order. The opinion does not state that it establishes any new binding precedent beyond the decision in this particular application; rather, the judgment resolves the application on the specific statutory interpretation and factual record before the court.

Attorneys for the petitioner (as recorded in the opinion): Leslie & Hinds.

J.C
Application refused.
Show full summary ...

    Phillips v. Phillips.

    Pugh, J.:— In this case an application is made to me to re-consider, either by way of review or as a fresh application with the same object as the former, an order that I made declining to order an attachment before judgment in a divorce proceeding. The application was made at 4-30 p.m at the rising of the Court, and I then dealt with the matter in a somewhat cursory way, and I refused the application on the simple ground that I never knew of an attachment before judgment in a divorce case. Learned counsel who now appears does not suggest that such an order has ever been made before in divorce proceedings. He argues that the port is one of first impression, and he contends that on principle he is entitled to the order. The argument is founded on section 45 of the Divorce Act, which provides that proceedings under this Act shall be regulated by the Code of Civil Procedure, and he wishes to eliminate from my consideration section 7, which provides that in all suits and proceedings under this Act the High Courts and District Courts shall give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules of the Divorce Court in England. It is practically admitted that if section 7 were to apply and bring in English rules and English practice, there would be no warrant for such an application; but Mr. Hill contends that section 45 exclusively regulates procedure: section 7 only relates to relief. He contends that this application is one of procedure only and not of relief, and that to attach a respondent's property before you have got any decree for damages, when it is uncertain whether you will get any damages, is a matter of procedure and not of relief. I would differ with regard to that. I think it is purely a matter of relief to ask to be allowed to seize a man's property without having a decree on the off-chance that you may get a decree hereafter, and it seems to me to have nothing whatever to do with procedure. The way in which a decree is executed, after you have obtained it, is a matter of procedure; but to give one man a right to come to Court before he gets a decree is to confer a right upon him, and that is not procedure. It seems to me that it cannot be successfully contended that by section 45 of the Divorce Act the Civil Procedure Code is to be applied wholesale to the Court when exercising divorce jurisdiction. If this were to be the case, it might also be contended that you could have a Receiver appointed to take charge of the wife, or an injunction against the co-respondent from visiting the wife pending a divorce case. Of course, a petitioner could not have a Receiver of the wife, because she is herself a party to the suit, but offhand, I do not see why, if the Code applied, he should not apply for an injunction. There is much in the Code of Civil Procedure which deals with substantive law and not procedure, and I think these portions of the Civil Procedure Code, order XXXVIII, rules 5 and 6, have no application in divorce proceedings. It is contended that I must infer an intention to defeat and delay the execution of a decree in this suit, from the fact that it was not until the respondent had met the co-respondent in London, when he could have heard of these proceedings, that the orders came out from England to dispose of certain shares. It is suggested that it follows from this that he must be disposing of these shares with intent to defeat or delay the execution of any decree that may be passed against him. No doubt it may have that effect, but it may be equally consistent with a resolve to make a home with the respondent in England, or elsewhere out of India, and not to return to this country. I am not satisfied as to which of these intents may be in the co-respondent's mind, and therefore I do not find the facts proved, which are essential to support an order. There would be one advantage from this application if it were successful, and that is, the Court would have it in its power to compel the co-respondent to make a settlement of any damages which might be awarded on the lady. That is practically the only result that could happen, and the co-respondent and the respondent appear to have taken matters into their own hands by practically going off together. I do not really think that this application is dictated by any particular desire on the part of the petitioner in that way: I think it is dictated by the usual and very natural annoyance and irritation which a man feels when another man runs away with his wife. I notice from the petition, the petitioner is described as a colliery proprietor, and one cannot eliminate from one's mind the knowledge that he is, as a matter of fact, a very rich man. The question of costs cannot be of any possible moment to him one way or the other. If he is anxious to provide for his wife's future, or make a provision for her, he can well afford to do so. I, therefore, decline to alter my former order, or to make a fresh order. I would add, that in the observations I have made with regard to the respondent and co-respondent, it must not be taken that I come to any finding as to the actions of the respondent or co-respondent; they may of course have a complete answer. I, am only dealing with the case as it is put before me in argument by the petitioner.

    Attorneys for the petitioner: Leslie & Hinds.

    J.C
    Application refused.

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    Comments

    Phillips v. Phillips.
    (Apr 26, 1910)