V. Asokan vs A.K. Balan

M.M. Pureed Pillay, J.—Revision Petitioner is the second judgment-debtor, a surety. Amount due to him from P.W.D. was attached by the Sub Judge, Vadakara.

The sole contention of the revision Petitioner is that the Sub Judge has no jurisdiction to attach the property which is outside his territorial jurisdiction. The executing Court overruled the objection and ordered attachment and allowed the execution to be proceeded with. The amount sought to be attached is with the P.W.D. Executive Engineer, Mahe whose office is admittedly beyond the jurisdiction of the executing Court. The question that arises for consideration is whether the executing Court can order attachment of amount due to the judgment-debtor from the Executive Engineer whose office is beyond the Court''s jurisdiction.

Order 21, Rule 52 reads:

Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued:

Provided that, where such property is in the custody of a Court any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise shall be determined by such Court.

The rule specifically provides that the attachment shall be made by a notice to the Court or officer with a request that the property, interest or dividend becoming payable thereon may be held subject to the further orders of the Court. The mode of attachment provided under the rule is different from attachment of movable property or immovable property outside the jurisdiction of the executing Court. In a case where amount due to a judgment-debtor is in the custody of a Court or public officer, actual seizure of the property does not become necessary. As stated in Rule 52 attachment is effected by a notice to the Court or the officer as the case may be. In a case coming under Rule 52 the amount due to the judgment-debtor is with the Court or public officer. When a notice is issued by the executing Court the officer or the Court having the money of the judgment-debtor is alerted of the claim of the attaching decree-holder. It is not necessary for the officer of the executing Court to effect the actual seizure of the property. That is precisely the reason why the legislature in its wisdom thought it only necessary to issue notice calling upon the Court or the public officer to hold the money until further orders of the executing Court. As actual seizure by the Court''s officers is not contemplated in a case coming under Rule 52, it cannot be held that Court which passed the decree has no jurisdiction to attach amount due to a judgment-debtor in the custody of another Court or public officer. As Rule 52 contemplates only notice to the Court or officer having the property of the judgment-debtor and not the actual seizure by the executing Court''s officers it is obvious that the rule is analogous to Rule 48 and therefore lack of territorial jurisdiction is not a valid plea.

In this context it is useful to refer to Gayoor Ahmad Khan Vs. Hazarimal and Others, , where the Court held thus:

The executing Court has jurisdiction under Order 21, Rule 52 to attach a moveable property which is in the custody of a Court outside the jurisdiction of the executing Court. This is one of the exceptions to the well-recognised general rule of territorial jurisdiction which governs shits as well as execution of decrees.

It is true that the words "whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court''s jurisdiction" in Rule 48 are not there in Rule 52. Merely because of the absence of the above words in Rule 52 it cannot be held that the executing Court lacks jurisdiction to attach property of the judgment-debtor in the custody of a Court or public officer beyond its territorial jurisdiction.

As the property is already in the custody of a Court or public officer a notice alone is necessary from the executing Court as provided under Rule 52 and the processes whereby attachment has to be effected in other cases are not necessary. In other words intervention of a transferee Court within whose jurisdiction the property sought to be attached is situated is not necessary. As the assistances of a transferee executing Court is not required in a case coming under Rule 52 contention that the executing Court cannot straightaway attach the property of the judgment-debtor in the custody of a Court or public officer is not tenable. In Bhagwati Prasad Bajpai Vs. Jai Narain Hanuman Das, , Division Bench of the Allahabad High Court held that direct attachment can be levied under Order 21, Rule 52 by the Court which passed the decree against property which is beyond its jurisdiction if the property is in the custody of a Court or public officer.

Some of the High Courts have taken a contrary stand Bhaskara Pillai v. Bank of Kerala AIR 1956 T.C. 100, Renuka Batra Vs. Grindlays Bank Ltd. and Others, and S.N. Sunderson and Co. v. Harbana Singh Sohti and Co. (P) Ltd. ILR 1972 Del 263, are decisions of the High Courts taking a contrary view. With respect I cannot agree with the above view.

Agreeing with Rajasthan and Allahabad High Courts I hold that direct attachment can be effected under order 21, Rule 52 by the Court which passed the decree acting on its execution side against property which is beyond its jurisdiction but in the custody of a Court or a public officer. The order of the Court below is confirmed and the C.R.P. is dismissed with no order as to costs.