Equity acts in personam
1. Introduction:
The court of equity always enforced its decree in personam. the court orders the decree of the court of equity, does not directly operate to transfer legal rights from the defendant to the plaintiff, but it is of nature of personal command on the defendant and it is affected through his obedience. if he fails to obey the order of the court of equity he is arrested and imprisoned.
2. Meaning:
Equity binds the conscience of a person which is required by the court. the court of chancery always enforced its decree in personam. it entertains certain suits respecting immovable property.
3. Purpose:
Its purpose is to avoid a direct clash with the court of law.
4. Importance:
This maxim has a vital importance. it describes the procedure in equity. the judgments of the court of equity operate in personam upon the defendant, especially in cases of land falling outside 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 of immovable property out of the jurisdiction. the maxim, equity acts in personum is an exception to this rule.
6. Case law:
Ewing Vs. Orr equing 1883 9 App case 34.
The courts of equity in England have always been courts of conscience, operating in personam, and not in rem and the exercise been accustomed to compel the performance of contracts and trusts as to subjects which were not locally or not in their jurisdiction.
7. Application:
This maxim applies in the following matter.
- For the redemption and foreclosure.
- For specific performance of a contract to create a mortgage.
- For sale.
- For an account of rent and profit.
- For the appointment of a receiver.
8. Conditions:
The following are the conditions for the application of the maxim:
- The remedy sought must be the equitable remedy.
- There should not be litigation in the appropriate foreign court.
- The dispute must be one of the consciences.
- The dispute must not be in which involves a breach of foreign law.
9. Exceptions:
It will not apply to an action for local transfer of land abroad.
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:
Where there is no contract there is no jurisdiction.
It has no application for a local trespass.
11. Position in Pakistan:
High courts in Pakistan have all the powers of a court of equity. the 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 relief in respect of immovable property can be obtained through the personal obedience of the defendant, the suit may be instituted either within the local limits of the court where the property is situated, or in the court where the property is situated, or in the court within 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 were adopted by the early chancellors, to avoid a direct collision with the court of law. the own judgment of the court of equity operates in personam upon the defendant. the court of equity has jurisdiction to entertain suits respecting immovable property, though the property may be situated abroad.