Gordon Woodroffe and Co. vs D.N. Radhakrishna Chetty and Another

Venkatasubba Rao, J.—The notice calls upon Mr. Ranganatham Naidu of Messrs. Dowden & Co. to show cause why he should not be

committed for contempt. He appears and has been examined He says that he is the sole proprietor of Messrs. Dowden & Co. It is immaterial for

the present whether this statement is true or not, Messrs. Dowden & Co. used to be frequently appointed by the Court, auctioneers to sell

properties. In this case when the sale proclamation was settled the Master appointed them auctioneers to sell certain properties in execution of a

mortgage decree. Mr. Ranganatham Naidu admits that the properties were sold by him in May, 1930, and that he in due course received the sale

proceeds. It was his obvious duty to have brought the money into Court. He failed to do so and the only excuse he is able to offer is that the Court

was then closed. As the Master points out, this did not prevent him from bringing in the money. In any case it could have been brought on the 14th

July when the Court re-opened after the long recess. Again he made default and he swore to an affidavit on that day containing a report of the sale.

Though it was sworn on the 14th it was filed in Court only on the 18th. The case came up before the Master for the sale being confirmed and he

discovered that the money had not been paid. After some adjournments Mr. Ranganatham Naidu finally declared before the Master on the 28th

July that he used the money for his own purposes, having utilised it in payment of his own creditors described in the Master''s proceedings as

Mullanese creditors. Several orders were made by the Master requiring Mr. Ranganatham Naidu to bring in the money and, owing to his continued

default, the case was posted before the Court. As it was represented to me that if time was granted money would be forthcoming, I adjourned the

case, I think, four times. I gave him every opportunity to fulfil his obligation and all he is able to say to-day is, that if another adjournment is granted

money may be forthcoming. In his evidence he says that his liabilities far exceed his assets, and if that is true there is very little possibility of the

money coming in. Whether the statement in regard to his financial position is true or not, I need not at present enquire. Mr. Ranganatham Naidu

has committed a flagrant violation not only of the duty imposed upon him by the rules but has also disobeyed the successive orders made by the

Master and by the Court''. In these circumstances he is guilty of contempt and he shall stand committed to prison for a term of six months from this

date, unless he shall at any time before the expiration of that term comply in all I respects with the order for payment and purge himself of the

contempt, in which case, he may apply for his discharge from imprisonment. See for the form of the order Origanti Venkataratnam v. K.

Desikachari (1918) 36 M.L.J. 461.

The notice issued to Mr. Ranganatham Naidu directs him to show cause net only why he should not be arrested but also why his properties

should not be attached. As the learned Advocate-General has not been able to be present to-day I adjourn this part of the Motion to to-morrow.

It only remains to add that these proceedings were taken by the Court suo motu, as Mr. Sell, who appears for the plaintiffs in the case, not

being sure of his legal position, did not desire to take any part in them.

As Mr. Ranganatham Naidu is in Court, I direct the bailiff to take him into custody.

[His Lordship subsequently heard arguments on the question whether the properties of the person in contempt can be attached before the expiry

of the term of imprisonment and delivered the following judgment on 26th August, 1930.]

I adjourned this motion for considering the question whether the properties of the person in contempt could be attached. I directed notice to the

Advocate-General and have had the advantage of hearing his argument. Mr. Radhakrishnayya, the counsel for the party, contends that under the

Original Side Rules, Order 21, Rule 5, the Court cannot attach the property of the person in contempt until the term limited in the warrant of

imprisonment (the period of six months in the present case) expires. It is the soundness of this contention that requires to be examined. The

question is, what is the power possessed by the High Court in regard to contempt independent of the Original Side Rules? Secondly, can such

power be curtailed by the rules, in any event, has it been so curtailed? As 1 shall show presently, the High Court has inherited the powers of the

old Supreme Court, which, in its turn, possessed the same power and authority as the Courts in England. What then was the extent of the

jurisdiction and power of the English Courts? In Ferryman v. Dinham (1641) 17 Car 1 f. 585 : 21 E.R. 535 the defendant having been committed

to the Fleet for not performing a decree, a sequestration was granted and the plaintiff was put into possession of the lands. The defendant objected

that, he being in prison, the writ, amounting as it did to a double execution, was bad. This contention was overruled. In Trigg v. Trigg (1759) Dic.

325 : 21 E.R. 294 the defendant being in contempt for not producing certain deeds, was taken on an attachment and turned over to the Fleet;

nevertheless, a sequestration was ordered to issue against him. In Dent v. Dent (1867) L.R. 1 P. & D. 366 it was held that the Court had power to

grant a sequestration, although no attachment had been issued. The question was more fully considered in Miller v. Miller (1870) L.R. 2 P. & D.

It was argued in that case that it was the universal rule in the Courts of Equity that before an order of sequestration was made, it should be

preceded by the issuing of a writ of attachment. The learned Judge overruled this contention observing;

I have looked into the cases and I do not find that this practice is so universal as stated.

The observations of Sir R.T. Kindersley in In re The East of England Bank (1864) 10 Jur. (N.S.) 1093 are cited in the judgment:

If the practice is that in order to obtain a writ of sequestration, you, must first get a writ of attachment, the effect is that there is no provision for

sequestration in the case of persons who arc not resident in England.

The attachment referred to in this case is, of course, the ''attachment'' of person. This case was followed in Allen v. Allen (1885) L.R. 10 P. &

D. 187. Daniel states the law thus:

It was also competent to the party claiming the benefit of the decree, where the disobedient person either could not be arrested upon the process,

or, having been arrested, remained in prison without paying obedience to the Court, to issue a writ of sequestration, directing the commissioners

therein named to sequester the personal property of the defendant and the rents and profits of his real estates, and to keep him from the enjoyment

of them, till he had cleared his contempt""--Daniel''s Chancery Practice, 8th Ed., Vol. I, page 789

The writ of sequestration referred to in the English books corresponds to what is known in this country as attachment of property. It is thus

described in Edwards on Execution:

The process of sequestration is a writ directed to certain persons, nominated by the person prosecuting the judgment or order, empowering them

to enter upon the real estate of the disobedient person, and to receive, sequestrate, and take the rents and profits thereof, and alto his personal

estate, and keep the same under sequestration in their hands until he shall have performed the act required and cleared his contempt""--1888 Ed.,

page 268.

The authorities I have cited show that sequestration may issue after the man has been committed to jail, although the term of imprisonment has

not expired. In such a case, sequestration could issue concurrently with attachment by way of double process.

This then was the extent of the power possessed by the English Courts. The High Court is invested, as I shall show, with the same authority

and jurisdiction.

The Supreme Court at Madras was established by the Charter of the 26th December, 1800. By Clause 5 of that Charter, a Court of Record

was constituted, to be called the Supreme Court of Judicature at Madras. By Clause 8 that Court was invested with jurisdiction similar to the

jurisdiction of the King''s Bench in England. In the same way, it was also invested with the equitable jurisdiction of the kind possessed by the Court

of Chancery. Clause 31 of the Charter, after enacting that the Supreme Court shall be a Court of Equity, proceeds to declare that it shall have the

same power as the Court of Chancery in Great Britain, to administer justice and to compel inter alia obedience to the decrees and orders of the

Court. The same clause very clearly provides that the Supreme Court shall exercise this power, as far as possible, in the same manner and to the

same extent, as the High Chancellor of Great Britain. Thus, the power of the Supreme Court to punish for contempt was as extensive as that

possessed by the Courts in England.

The High Court has inherited this power of the Supreme Court. Section 1 of the High Courts Act of 1861 says that it shall be lawful for His

Majesty by Letters Patent to establish a High Court of Judicature at Madras. Section 8 provides that upon the establishment of such High Court,

the Supreme Court and the Court of the Sudder Adawlut and Foujdarry Adawlut shall be abolished. Section 9 deals with the jurisdiction and

powers of High Courts. It provides inter alia that, save as by such Letters Patent may be otherwise directed and without prejudice to the legislative

powers of the Governor-General of India in Council, the High Court to be established shall have and exercise all jurisdiction and every power and

authority in any manner vested in any of the abolished Courts at the time of their abolition.

In pursuance of this Act, a Letters Patent was issued and, while it recites in its preamble the provisions of Section 9, does not restrict the

power and jurisdiction of the High Court to punish for contempt. Nor has its power and authority, in so far as it is material to the present purpose,

been curtailed or affected by any enactment of the Governor-General in Council. Finally, Section 106 of the Government of India Act, which

repeals the High Courts Act, provides that the several High Courts shall have all such jurisdiction, powers and authority as are vested in them at the

commencement of the Act. The result is, that the High Court has the same power in this respect as was possessed by the old Supreme Court.

The next question that arises relates to the effect of Order 21, Rule 5 of the Original Side Rules. It is under Clause 37 of the Letters Patent and

Sections 122 and 129 of the CPC that the High Court is empowered to frame rules. It is in respect of proceedings in civil cases that power to

make rules is conferred by these provisions. It has been suggested that the present motion to commit for contempt is a criminal matter and that the

rules made by the High Court in so far as they deal with matters of a criminal nature are ultra vires. It is unnecessary to discuss this position, nor the

cases, such as, O''Shea v. O''Shea (1890) L.R. 15 P. & D. 59 that have been cited on the point. I shall assume without deciding, that Order 21,

Rule 5 of the Original Side Rules is intra vires. Then, another question arises: The power that is conferred in regard to making rules is in respect of

regulating"" procedure. If Rule 5 has the effect of restricting the power of the High Court as suggested by the party''s Counsel, can it be treated

merely as a rule of procedure? As I have come to the conclusion that, on its true construction, the rule has no such effect, it is unnecessary to

decide this point. Rule 4 provides that the Court may commit the person in contempt to jail for such a limited time as it thinks fit. Rule 5 then goes

on to say that if at the end of the time limited in the warrant of imprisonment, the party persists in his disobedience, his property may be attached.

The question is, what is the effect of this rule? It merely enacts that, on the expiry of a certain period, the Court may issue a certain process. This

shows how the discretion of the Court may ordinarily be exercised. In my opinion, no greater effect should be given to this rule. It would be wrong

to hold by mere inference, that the power which the Court undoubtedly possesses is taken away.

Statutes which limit or extend common law rights must be expressed in clear unambiguous language, such, as those which take away the

jurisdiction of the High Court of Justice""--27 Halsbury, page 150.

No statute operates to repeal or modify the existing law, whether common or statutory, or to take away rights which existed before the statute

was passed, unless the intention is clearly expressed or necessarily implied""--p. 167.

Here, we are not dealing with a statute, but with a rule made by the High Court, and these maxims apply with greater force. It is not only

natural but proper to construe the rule in question, in the sense that it is merely regulative of the discretion, which undoubtedly vest in this Court. I

have, there-lore, come to the conclusion that attachment can issue against the property belonging to the party, although he is still in jail.

I was accordingly about to direct attachment but the party has cleared his contempt by paying the amount to the plaintiff''s attorneys. They

have reported satisfaction of the decree to the extent of Rs. 34,975, the entire sale proceeds (I having disallowed the party in contempt not only

the auctioneer''s remuneration but also his charges for actual expenses incurred). The contempt having been cleared, there is no further need to

attach his properties.