Section 136 — Procedure where person to be arrested or property to be attached is outside district
A relay between courts. Where a court is asked to arrest a person or attach property (otherwise than in execution of a decree) but the person or property lies outside its district, it issues the warrant or order and sends a copy — with the probable costs — to the District Court where they are (1). That court carries it out and reports back (2); an arrested person is sent back unless he shows cause or gives security (3); and in the presidency towns the Court of Small Causes stands in for the District Court (4).
How to read Section 136
The problem
A court can order an arrest or attachment (not in execution), but the person or property is outside its jurisdiction — beyond the reach of its own officers.
The relay
It sends the warrant / order + costs to the District Court where they are; that court executes it and reports back (1)–(2).
Person & presidency
An arrested person is sent back unless he shows cause or gives security (3); in Calcutta / Madras / Bombay the Small Cause Court acts as the District Court (4).
The bare Act
(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.
(3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.
(4) Where a person to be arrested or movable property to be attached under this section is within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay,1 the copy of the warrant of arrest or of the order of attachment, and the probable amount of the costs, shall be sent to the Court of Small Causes of Calcutta, Madras2 or Bombay, as the case may be, and that Court, on receipt of the copy and amount, shall proceed as if it were the District Court.
1 The words “or of the Chief Court of Lower Burma” omitted by the A.O. 1937.
2 Subs. by the A.O. 1937, for “Bombay or Rangoon” (now “or Bombay”).
In short: a court whose order must bite outside its own district does not act directly — it hands the warrant/order, with costs, to the District Court on the spot, which executes it and reports back. An arrested person is sent to the issuing court unless he shows cause or gives security; in the three presidency towns the Small Cause Court plays the District Court’s part.
→ § 136 is confined to arrest/attachment NOT in execution of a decree (execution has its own cross-jurisdiction machinery). It is a court-to-court relay respecting territorial limits — the local District Court lends its officers, and the arrested person’s liberty is safeguarded by the show-cause / security route in (3).
Key terms decoded
§ 136 applies only to arrest / attachment under other provisions (e.g. arrest before judgment, attachment before judgment) — not execution, which has its own rules.
The person or property is beyond the issuing court’s territory, so its own officers cannot reach them — the trigger for the relay.
The principal civil court of the district where the person / property is. It receives the copy + costs and executes the warrant or order, then informs the issuing court.
An advance estimate of the expense of the arrest / attachment, sent with the copy so the executing court is not out of pocket.
An arrested person need not be sent to the issuing court if he shows cause, or gives security for his appearance or to satisfy any decree — then he is released.
In the ordinary original civil jurisdiction of the Calcutta / Madras / Bombay High Courts, the Small Cause Court performs the District Court’s role under this section.
The picture — a court-to-court relay across district lines
§ 136 keeps each court within its own territory while still letting its order take effect elsewhere: the order travels, with its costs, to the local court, which lends its officers — and the arrested person’s liberty is protected by the show-cause / security route before he is sent on.
Part by part — the four sub-sections
Sub-section (1) sets the relay in motion: the issuing court keeps the matter but, because the target is outside its territory, it sends the order — and the likely costs — to the District Court on the spot.
Where an application is made that any person shall be arrested or that any property shall be attached … not relating to the execution of decrees …
Only for arrest / attachment outside execution, and only where the person or property is outside the court’s limits.
…the Court may, in its discretion, issue a warrant of arrest or make an order of attachment…
The court is not bound — it acts in its discretion on the application before issuing the warrant or order.
…and send to the District Court … a copy of the warrant or order, together with the probable amount of the costs…
It sends a copy of the warrant / order, plus the estimated costs, to the District Court where the person or property is.
Sub-section (2) puts the District Court’s machinery at the issuing court’s service — it executes the order through its own or a subordinate court’s officers, and closes the loop by reporting back.
The District Court shall … cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself…
The local District Court carries it out — directly, or through a subordinate court.
…and shall inform the Court which issued or made such warrant or order of the arrest or attachment.
It must inform the issuing court that the arrest / attachment has been made — keeping the originating court in control of the matter.
Sub-section (3) guards the arrested person’s liberty: he is not simply shipped across — he may show cause against being sent, or give security, and then be released on the spot.
The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued…
As a rule, the arrested person is sent to the issuing court — the court actually seised of the matter.
…unless he shows cause … why he should not be sent …, or unless he furnishes sufficient security for his appearance … or for satisfying any decree…
Two escapes: a good reason not to be sent, or security for his appearance / to satisfy a decree.
…in either of which cases the Court making the arrest shall release him.
If either condition is met, the arresting court releases him — he is not transported to the issuing court.
Sub-section (4) adapts the relay to the presidency towns, where the High Court (not a District Court) holds ordinary original civil jurisdiction — so the Court of Small Causes is slotted in to play the District Court’s part.
Where a person to be arrested or movable property to be attached … is within the local limits of the ordinary original civil jurisdiction of the High Court … at Fort William in Bengal or at Madras or at Bombay…
The target is in the original-side territory of the Calcutta, Madras or Bombay High Court — where there is no ordinary District Court.
…shall be sent to the Court of Small Causes of Calcutta, Madras or Bombay … and that Court … shall proceed as if it were the District Court.
The Court of Small Causes receives the copy + costs and does everything the District Court would — standing in for it. (The 1937 adaptation dropped the old references to the Chief Court of Lower Burma and Rangoon.)
How the four sub-sections flow
One order, relayed across district lines — and back
Connected provisions
Section 136 opens Part XI’s process & machinery group (§§ 136–143). It governs arrest / attachment outside the district for matters not in execution — the natural sequel to the arrest provisions of §§ 134–135A, and a cousin of execution’s own cross-court transfer rules.