Provision for arrest or attachment of property before judgment, outside the jurisdiction of the Court ordering the same, is made in Section 136 of the Civil Procedure Code. Sub-sections (1) and (2) of that section read:
“136. (1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment,
and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.
(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself and shall inform the Court which issued or made such warrant or order of the arrest or attachment”
A plain reading of these two Sub-sections will show that where the property to be attached is situate outside the local limits of the jurisdiction of the Court to which an application for the purpose is made, an order of attachment has to be sent to the District Court within the local limits of whose jurisdiction the property is situate together with the probable amount of tile costs of the attachment.
On receipt of the order of attachment, the District Court may cause the attachment to be made by its own officers or by a Court subordinate to it. Primarily, therefore, jurisdiction to make an attachment on the authority of a precept received from an outside Court vests in the District Court. A Court subordinate to the District Court may attach the property in compliance with the order of attachment received, but that would be possible only if the District Court requires it to do so.
It is the District Court, which has jurisdiction to cause the attachment to be made by its own officers or by a Court subordinate to itself. In the absence of a direction by the District Court to that effect, therefore, any attachment, which may be made by a subordinate Court in pursuance of a precept received from a Court in another district would be without jurisdiction and consequently void.
Irregularity of Procedure
The provisions of Section 136 are quite explicit, and even though it may, to some extent, be said that that section lays down procedure for attachment of property outside the jurisdiction of the Court ordering the same, it also prescribes jurisdiction for attachment of property in such cases.
The very fact that the order of attachment has to be sent to some other Court, indicates that the Court ordering the attachment has no jurisdiction to cause the attachment being made outside its own territorial jurisdiction. In order, therefore, that attachment may be made, two conditions must be satisfied-
(1) The property must lie within the territorial jurisdiction of the Court causing the attachment to be made.
(2) The Court ordering the attachment must be seized of the matter.
If the order of attachment is sent to a Court other than, the District Court, the property required to be attached may He within the jurisdiction of that Court, but that Court cannot be seized of the matter unless the proceedings for attachment are properly before it. Sub-sections (1) and (2) of Section 136, therefore, prescribe not only the manner in which the attachment shall be made but also jurisdiction for making the attachment.
On receipt of the order of attachment, the District Court is seized of the matter and the property is also within its jurisdiction and attachment can, therefore, be made by it. Sub-section (2), however, prescribes that the District Court may cause the attachment to be made by its own officers or by a Court subordinate to itself. If the District Court exercises the option to get the attachment made by a Court subordinate to itself, it will be only then that that Court will be seized of the matter and since the property also lies within its jurisdiction, it will be able to get it attached.
In ‘Hazi Rahim bux and sons v. Firm Samiullah & Sons (1962)’, the court held that, “It is pointed out that when an order of attachment is sent to the District Court, that Court has no discretion of its own in refusing to execute the warrant or direct attachment being made, but is bound to carry out the order itself or get it executed through a Court subordinate to it.
The only function of the District Court to which the order of attachment is sent or of a Court subordinate to it to which the District Court might send it, is, it is pointed out, only to carry out the order and comply with the formalities of attachment.
It is certainly true that the District Court, to which the order of attachment is sent, has no discretion in the matter and has to carry out the order of the Court issuing the order of attachment, but that does not necessarily mean that the provision made for the order of attachment being sent, to that Court is a mere matter of procedure. The very fact that the Court ordering the attachment cannot itself issue a warrant and send it direct to the nazir for execution, indicates that a question of jurisdiction is involved in it.”
Reference
Hazi Rahim bux and sons v. Firm Samiullah & Sons (1962)