1. We are invited in this Rule to examine the legality of anorder made by the Court below for the payment of a sum of money to thedecree-holder, opposite party. The facts material for the determination of thequestions in controversy may be shortly stated. On the 30th June 1914, theplaintiffs instituted a suit for recovery of money against the defendant in theCourt of the Subordinate Judge of Nadia. On the next day, they applied for anorder for attachment before judgment in respect of a sum of Rs. 4,200 due tothe defendant from the East India Railway authorities for work executed under acontract. The Subordinate Judge, on that date, made a preliminary order on theapplication under Rule 5 of Order XXXVIII of the Code. The order called uponthe defendant to show cause why he should not furnish security for the summentioned and why, on his failure to do so, an order for attachment of the sumbefore judgment should not be made. The Court also proceeded to make an adinterim order for attachment under Clause (3) of Rule 5. This ad interim orderwas communicated to the officer of the East India Railway who had the money athis disposal. It is inexplicable how the Subordinate Judge came to pass thisorder, as the officer resided beyond his jurisdiction and the debt, due to thedefendant, was not payable within his jurisdiction. On service of notice uponthe officer, the money was, however, transmitted to the Subordinate Judge onthe 8th March 1916 by means of a cheque on the Bank of Bengal. Thereafter, for someunexplained reason, the application for attachment before judgment was notfurther considered, although the case came before the Subordinate Judge on manyoccasions. Ultimately, an ex parte decree was made in favour of the plaintiffson the 23rd November 1914. The position, consequently, on that date was, thatthe application for attachment before judgment lapsed; but a large sum of moneylater on came into the custody of the Court, placed at its disposal by theRailway authorities. The petitioners, who have obtained this Rule, thenappeared before the Subordinate Judge and raised objection to the payment ofthis money to the decree-holders, on the allegation that they had acquired avalid title to the same, while it was still in the hands of the Railway authorities,by virtue of an assignment in their favour by the defendant-debtor on the 22ndAugust 1915. The Subordinate Judge overruled the objection, and on the 8th and27th March 1916 the money was paid out to the decree-holders in two instalmentson the basis of an application for execution, presented on the 4th February1916, but not followed by an order for attachment, obviously on the erroneousassumption that a valid order for attachment before judgment had beenpreviously made and was still in operation; no such order, as we have seen, hadever been made, none could have been, indeed, legally made, and none was inforce in fact or in law. It is obvious that the action taker by the SubordinateJudge in this matter has been illegal from beginning to end, although, even onreview, he has declined to re call his order on the 3rd July 19.6.

2. As pointed out by this Court in the case of Begg Dunlopand Co. v. Jagunnath Marwari 11 Ind. Cas. 417 [LQ/CalHC/1911/313] : 39 C. 104 : 16 C.W.N. 402 : 14C.L.J. 228, it is not competent to a Court, in execution of a decree for money,to attach, at the instance of the decree-holder, a debt payable to thejudgment-debtor outside the jurisdiction by a person not resident within thejurisdiction of that Court. Consequently, in the case before us, theapplication for attachment before judgment of the money in the hands of theRailway Authorities should never have been entertained by the SubordinateJudge. The ad interim order was thus entirely without jurisdiction. Theultimate order contemplated by the Court was, as we have seen, never passed.The position, consequently, was that the Court had, in its hands, money whichcould not have been in law and had never been in fact duly attached, which hadbeen in reality obtained by usurpation of jurisdiction. There is thus no escapefrom the conclusion that the money was obtained, and was paid oat to thedecree., holders, wholly without authority. In these circumstances, there canbe no serious controversy that the illegal orders must be cancelled and theparties restored to the position they respectively occupied before the illegalintervention of the lower Court. We have been, however, pressed by thedecree-holders to stay our hands on the ground that the merits, as they allege,are in their favour. It cannot be overlooked, however, that the merits,assuming them to have been investigated at all, have been determined by a Courtwhich had usurped jurisdiction and was not competent to discuss the matter incontroversy. In our opinion, when a Court has manifestly usurped jurisdictionand has illegally secured possession of a fund, which should not have comeunder its control, its orders must be discharged; it would be lamentable toallow such illegal orders to stand, on the plea that possibly similar orderscould have been made by a Court of competent jurisdiction. In this connection,the weighty words of Lord Halsbury in Farquharson v. Morgan (1894) 1 Q.B. 552 :63 L.J.Q.B. 474 : 9 R. 202 70 L.T. 152 : 42 W.R. 306 : 58 J.P. 495 may beusefully recalled: "it has been long settled that, where an objection tothe jurisdiction of an inferior Court appears from the face of the proceedings,it is immaterial by what means and by whom the Court is informed of suchobjection. The Court must protect the prerogative of the Crown and the duecourse of the administration of justice by prohibiting the inferior Court fromproceeding in matters as to which it is apparent that it has no jurisdiction.The objection to the jurisdiction does not in such a case depend on some matterof fact as to which the inferior Court may have been deceived or misled, orwhich it may have unconsciously neglected to observe, and the Judge of suchCourt, therefore, must or ought to have known that he was acting beyond hisjurisdiction." Lord Davey in the same case referred to the decision inWorthington v. Jeffries (1875) 10 C.P. 379 : 44 L.J.C.P. 209 : 32 L.T. 606 : 23W.R. 750 and observed that it has always been the policy of the law, as aquestion of public order, to keep inferior Courts strictly within their propersphere of jurisdiction see also Burder v. Veley (1840) 12 Ad. And E. 233 : 113E.R. 801; Be Haher v. Queen of Portugal (1851) 17 Q.B. 171 : 20 L.J.Q.B. 488 :16 Jur. 164 : 117 E.R. 1246 l 85 R.R. 398; London Corporation v. Cox. (1867) 2H.L. 239 : 36 L.J. Ex. 255 : 16 W.R. 44. We are clearly of opinion that theproceedings in the Court below have been ultra vires throughout and that theorders of the Subordinate Judge for payment of the fund in his hands, made onthe 8th and 27th March 1916, must be cancelled.

3. The result is that the rule is made absolute and all theorders of the Subordinate Judge in this matter discharged. The decree-holdersare directed to bring back into the lower Court, on or before the 15th Novembernext, the sums they have withdrawn from that Court, together with interestthere on at 3 per cent, per annum. The sum must be refunded in the Court ofthe Subordinate Judge of Nadia, because it was from that Court that the moneywas withdrawn under an order made without jurisdiction. If the money is notrefunded on or before the 15th November next, as now directed, the SubordinateJudge will forthwith proceed to execute the order of this Court and realise themoney by attachment and sale of the moveable and Immovable properties of thedecree-holders and by attachment of their persons, if necessary This proceduremust be adopted, whether the petitioners take any steps in that behalf or not,as it is imperative that the money which has been paid out of Court under anillegal order made without jurisdiction, must be brought back into Court. Wehope, however, that it will not be necessary for the Subordinate Judge to takea step of this character and that the decree-holders will bring back the moneyinto Court on or before the 15th November next, as directed. As soon as themoney has been refunded, it will be transmitted, by the Subordinate Judge tothe Court of the Subordinate Judge of Hooghly, which is the Court of competentjurisdiction in this matter; at the same time, the application made by thedecree-holders on the 4th February 1916, for execution of their decree againsttheir judgment-debtor, will be transmitted to that Court. The Subordinate Judgeof Hooghly will keep the money in his Court suitably invested, if necessary,and will proceed to deal with the application for execution. He will, alongtherewith,- take up for determination the objection of the present petitioners,namely, that they had acquired a valid title to this fund under an assignmentmade in their favour on the 22nd August 1915 by the debtor of thedecree-holders. They have in this Court produced the deed of assignment, whichwill be received here and marked as an exhibit and will be transmitted to theCourt of the Subordinate Judge of Nadia, to be transmitted by that officer tothe Court of the Subordinate Judge of Hooghly along with the application forexecution of the decree-holders. The decree-holders will be at liberty to amendtheir application for execution, after notice to the judgment-debtor and theobjectors. The Subordinate Judge will receive such evidence as may be adducedby the parties for the elucidation of the questions in controversy; but we mayadd that we hold that there was no valid attachment of this fund on the 22ndAugust 1915, so that if it is established that the assignment related to thisfund and was valid and operative, the decree-holders are not entitled toproceed against it. There will be no order for costs in these proceedings.

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Surendra Nath Goswami and Ors. vs. Bansi Badan Goswami and Ors. (30.08.1916 - CALHC)