Equity acts in personam

Equity acts in personam

Introduction:

The court of equity always enforced its decree in personam. The court orders the defendant to carry out its order. 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.

Meaning:

Equity binds the conscience of a person do which is required by court. The court of chancery always enforced its decree in personam. It entertain suits respecting immovable property, though the property might be situated abroad if relief sought could be obtained through the personal obedience of the defendant and the personal obedience can only be secured. If he resides within the local limit of the jurisdiction of the court or carried on business within those limits.

Purpose:

Its purpose is to avoid the direct clash with the court of law.

Importance:

This maxim has a vital importance. It describes the procedure in equity the judgments of the court of equity operate in personam upon defendant. Specially in cases of land falling outside the jurisdiction of the court.

Explanation:

It is the general rule that the court will not adjudicate on questions relating to title or the right to possession of immovable property out of the jurisdiction. The maxim equity acts in personam is exception to this rule.

Application:

This maxim applies in the following matter.

(i)                  For 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.

Conditions:

Following are the conditions for application of this 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 consciences.

(iv)              Dispute must not be in which involves a breach of foreign law.

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.

Limitation:

(i)                  Where there is no contract there is no jurisdiction.

(ii)                It has no application to local tress pass.

Position in Pakistan:

High Courts in Pakistan have all powers of court of equity. High Court can enforce decrees in personam.

Case law PLD 2003 LAH 197:

It was held that judicial officer has to decide matter before him in accordance with the evidence produced in that matter. The right of parties are determined in accordance with the law applicable.

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 operates in personam upon the defendant. The court of equity has jurisdiction to entertain suits respecting immovable property, though the property may be suited abroad.