Zubeda Begam Saheba vs Kommana Kanniah and Others

This is an application to revise an order passed by the Subordinate Judge of Vizagapatam refusing to set aside an attachment before judgment of

property, namely a house alleged to belong to the petitioner who is the. wife of the 3rd respondent. The attachment order was passed in the

following circumstances. Respondents 1 and 2 filed O.S. No. 19 of 1922 against respondents 3 and 4 for the recovery of Rs. 50,000 and

obtained an order for attachment before judgment of the said property alleging it to belong to the 3rd respondent. The petitioner''s case was that

the house in question belonged to her and not to the 3rd respondent. The property is situate in what are known as the Agency tracts. The

Subordinate Judge of Vizagapatam in whose Court the application was made rejected the petition on the ground that the claim was not

satisfactorily proved.

The only question raised in this revision petition is one of jurisdiction. It has been argued before us that the Subordinate Judge of Vizagapatam

has no jurisdiction in a suit pending before him to attach before judgment properties which admittedly are in the Agency tracts over which his Court

has no jurisdiction; and in support of this argument strong reliance has been placed on a decision by the Privy Council in Ramabhadra Raju

Bahadur v. Maharaja of Jeypore ILR (1919) M 813 : 37 MLJ 11. In that case a suit was brought under the CPC in the Court of the Subordinate

Judge of Vizagapatam to enforce a mortgage of property, some of which were situate in the Agency tracts subject to the special jurisdiction of the

Agency Courts, and a decree on the mortgage and for the sale of the mortgaged property was made by the Subordinate Judge and affirmed by the

High Court. On appeal to the Privy Council it was held that, ""so far as the decree was for the sale of the mortgaged property in the Scheduled

District, the Courts had no jurisdiction to make it, "" and the decree was, therefore, varied by deleting the order for sale so far as applicable to the

lands situate within the Agency Districts. In our opinion, the reasoning adopted by their Lordships of the Privy Council in this case applies to the

present case also. Their Lordships state : "" The order for sale is made under sections of the CPC which the Code itself says are not to apply to the

Scheduled District. "" In the case before us the property is situate in the Agency tracts and the order for attachment before judgment was made

under the CPC which does not apply to such tracts. On the authority of the decision in Ramabhadra Raju Bahadur v. Maharaja of Jeypore ILR

(1919) M 813 : 37 MLJ 11 it was held in Perrazu v. Seetharamachandrarazu (1922) 16 LW 669 that an Agency Court was right in refusing to

execute a decree sent to it for execution regarding the lands in the Agency tracts. The learned vakil for the respondents has not been able to

advance any satisfactory reason why the principle enunciated in Ramabhadra Raju Bahadur v. Maharaja of Jeypore ILR (1919) M 813 : 37 MLJ

11 should not be applied in the present case also. The argument that the order for attachment before judgment in this case was passed in a suit for

money, while the order for sale in the Privy Council case was passed in a suit against property does not really affect the application of the principle

that the order was made under sections of the CPC which the Code itself says are not to apply to the Scheduled Districts.

It has also been argued by the learned vakil for the appellant that there is no provision in the Agency rules to attach before judgment properties

in the Agency tracts in a suit pending in a Court outside the Agency. In this connection our attention; has been drawn to Rules 22 and 16, Clause

(4) of the Agency Rules. In our opinion, these rules do not confer the power on an Agency District Munsif of attaching properties before judgment

at the instance of a British Court situate outside the Agency tracts. Nor do we think that such power was conferred upon him by Rule 2, Clause

(4), relied upon by the respondents.

Applying the principle of the Privy Council decision in Ramabhadra Raju Bahadur v. Maharaja of Jeypore ILR (1919) M 813 : 37 MLJ 1 we

hold that the order of attachment before judgment passed by the learned Subordinate Judge is without jurisdiction and we set it aside accordingly.

The petitioner will have her costs in this Court only.