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Thread: Q. Discuss the maxim equity acts in personam. (2000)(2001)(2002)(2003)(2006)

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    Word Icon 35px Jpg.ashx Q. Discuss the maxim equity acts in personam. (2000)(2001)(2002)(2003)(2006)

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    1. Introduction:
    The court of equity always enforced its decree in personam. the court orders the decree of the court of equity do not directly operate to transfer legal right from the defendant to the plaintiff, but is of nature of personal command on the defendant and it is effected through his personal obedience. if he fails to obey the order of court of equity he is arrested and imprisoned.
    2. Meaning:
    Equity binds the conscience of a person do which is required by the court. the court of chancery always enforced its decree in personam. it entertain certain suits respecting immoveable property, though the property might be situated abroad if the relief sought could be obtained through the personal obedience can only be secured. if he resides within the local limit of the jurisdiction of the court or carried on business with in those limits.
    3. Purpose:
    Its purpose is to avoid the direct clash with the court of law.
    4. Importance:
    This maxim has a vital importance. it describe the procedure in equity the judgments of the court of equity operate in personem upon defendant. specially in cases of land falling out side the jurisdiction of the court.
    5. Explanation:
    It is the general rule that the court will not adjudicate on questions relating to the title or the right to possession immovable property out of the jurisdiction. the maxim equity acts in personum is exception to this rule.
    6. Case law:
    Ewing Vs. Orr equing 1883 9 App case 34.
    The courts of equity in England are always have been, courts of conscience, operating in personam, and not in rem and in the exercise been accustomed to compel the performance of contracts and trusts as to subjects which were not locally or not in three jurisdiction.
    7. Application:
    This maxim applies in the following matter.
    (i) For the redemption and foreclosure.
    (ii) For specific performance of a contract to create a mortgage.
    (iii) For sale.
    (iv) For account of rent and profit.
    (v) For the appointment of receiver.
    8. Conditions:
    Following are the conditions for application of the maxim:
    (i) The remedy sought must be equitable remedy.
    (ii) There should not litigation in the appropriate foreign court.
    (iii) The dispute must be one of the conscience.
    (iv) Dispute must not be in which involves a breach of foreign law.
    9. Exceptions:
    (i) It will not apply to an action for local transfer of land abroad.
    (ii) It has no application where there is no contract and the dispute between the parties is only a question of title foreign land.
    10. Limitation:
    (i) Where there is on contract there is no jurisdiction.
    (ii) It has no application to local tress pass.
    11. Position in Pakistan:
    High courts in Pakistan have all powers of a court of equity. high court can enforce its decrees in personam. proviso to Sec. 16 of the code is an application in the modified form of the above maxim according to it, where a suit to obtain a relief in respect of immoveable property can be obtained through the personal obedience of the defendant, the suit may be instituted either with in the local limits of the court where the property is situated, or in the court where the property is situated, or in the court with in whose jurisdiction the resides or carries on business or personally works for gain.
    12. Conclusion:
    To conclude I can say that, the equity acts in personam was adopted by the early chancellors, in order to avoid a direct collision with the court of law. the own judgment of court of equity operate in personam upon the defendant. the court of equity has jurisdiction to entertain suits respecting immovable property, though the property may be situated abroad.

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