M A A RAOOF Vs. K G LAKSHMIPATHI

JUDGEMENT

(1.) THIS appeal raises an interesting question of the validity of attachment of certain shares belonging to the judgment-debtor. The decree-holder Lakshmipathi obtained a decree in O. S. No. 2344 of 1960, on the file of the City Civil Court, madras, by consent. He filed E. P. 1458 of 1966 to recover a sum of Rs. 8,000/odd by attachment and sale of the shares which the judgment-debtor Raoof held in a company called Intrac Pharmaceutical (Pte.) Ltd. , Industrial Estate, Ambattur. An interim prohibitory order was issued both to the judgment-debtor and to the company. The company did not appear and object. The judgment-debtor appeared and took time to file a counter. He did not file the counter in time and so the attachment was made absolute. Against that order he has filed the present appeal.

(2.) THE point taken on behalf of the appellant by his learned Counsel Sri K. N. Subramaniam is that, though the judgment-debtor Raoof lives within the jurisdiction of the City Civil Court, Madras and the shares also are with him, the city Civil Court had no jurisdiction to issue the prohibitory order, because the place of business of the company is Ambattur, outside the jurisdiction of the City civil Court, and the dividend due on the shares is also payable only at Ambattur. In my opinion this contention is not sound. Section 51 (b) C. P. Code states that subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree by attachment and sale or by sale without attachment of any property. Order 21, Rule 46 prescribes the mode of attachment. It is necessary to quote it in full:-" 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 moveable 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 moveable 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 court-house 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 moveable 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". It is Section 51, C. P. C. , which the jurisdiction to the Court to attach and sell the shares and therefore the question whether the City Civil Court had jurisdiction to attach the shares must be determined primarily with reference to this section. Order 21, Rule 46, C. P. Code, only prescribes the mode of attachment, though the provisions thereof may have to be borne in mind in determining the question of iurisdiction. The principle obviously underlying Section 51 (b), C. P. C. , is that, if the property sought to be attached is within the limits of the jurisdiction of the court, the Court can attach and sell the property. That is reinforced by the provisions of Sections 39 and 46, C. P. C. , which provide for the transfer of the decree to a Court within whose limits the property sought to be attached and sold is situate, Applying this criterion, since the properties sought to be attached and sold are the shares of the judgment-debtor and they are with him in Madras within the limits of the jurisdiction of the City Civil Court, it would follow without furthermore that that Court had the jurisdiction to attach and sell. It is only necessary to add that there is nothing in Order 21, Rule 46, C. P. C. , to contradict this result and I might go further and say that under Order 21, Rule 46, C. P. Code, also, the criterion would seem to be only the residence of the judgment-debtor against whom prohibitory order is to be made for transferring the shares or receiving any dividend therefrom. That is all Sub-rule (1) of Rule 46 indicates. It may be noted that Sub-rule (2) of Rule 46 only requires that a copy of the prohibitory order shall be affixed on some conspicuous part of the Court house and another copy to be sent to the proper officer of the Corporation. In other words, the, provision, which would seem to determine the question of jurisdiction, with which we are concerned, is only Sub-rule (1) it would be sufficient if the judgment-debtor, in whose name the shares stand and to whom the prohibitory order is issued, resides within the jurisdiction of the executing court. Affixture of a copy of the prohibitory order on some conspicuous part of the court house and service of the copy of the order on the proper officer of the corporation under Sub-rule (2) are only additional formalities to be observed by the executing Court, but they are not determinative of the question as to which court has jurisdiction to issue the prohibitory order,

(3.) SRI K. N, Subramaniam, the learned Counsel for the appellant, however, relies on the decision of Mockett, J. , in Balusami v. Official Assignee, Madras, 1939 Mad wn 573= (AIR 1939 Mad 811 ). There some persons had been adjudged insolvents in this Court and against whom a decree had been obtained by one Obla K. Ramaswamiar. That decree itself was attached by one C. S. Varadachariar in execution of a decree in suit O. S. No. 97 of 1930 in the Madurai Sub-Court. The learned Subordinate Judge issued the prohibitory order to the Official Assignee of madras prohibiting him from paying over the dividend due in respect of the decretal debt to anybody other than the attaching decree-holder C. S. Varadachariar. Objection was taken to this course by the Official Assignee on the ground that the Sub-Judge at Madurai had no jurisdiction to issue such a prohibitory order against the Official Assignee not resident within his jurisdiction and in respect of the dividends payable at Madras, which again was outside the jurisdiction of the learned Subordinate Judge. Mockett, J. , upheld this objection and quoted Order 21, Rule 46, C. P. C. , laying down that the attachment should be made by a written order prohibiting in the case of the debt the creditor from recovering the debt and the debtor from making payment thereof until further orders of the Court. It meant, according to the learned Judge, that the Court in order to have jurisdiction must also have jurisdiction against the debtor so as to make the order prohibiting him from making the payment. In other words, according to the learned Judge, it was necessary that the debtor should be within the jurisdiction of the Court. In that case the debtor was the insolvent or rather the Official Assignee representing him, and he was not within the jurisdiction of the Sub-Court. No doubt the creditor (the original decree-holder Obla K. Ramaswamier) was within the jurisdiction of the Subordinate Judge but that only satisfied the first limb of the provision in question. Such was the reasoning of the learned Judge.