Distinction between judgement in rem and personam.
*Mathews J. Nedumpara*
98205 35428
23.02.2025
Distinction between judgement in rem and personam.
Proceedings in rem does not mean that a Court can, by its judgment, affect the rights of a person who is not a party before it. No court has the power to adversely affect the rights of a person who is not before it, no matter whether the proceedings are in rem or in personam. The perception that a person’s rights can be adversely affected without him on the party array for the reason that the proceedings in question is in rem, is a misconception. It only means that where a proceedings is in rem, any person who is not a party to the proceedings can take advantage of the same. But his interests cannot be adversely affected. The classic example is a suit for divorce between a husband and wife. Where divorce is granted, the judgment is in rem. A third person who is not a party to the suit between the husband and wife can enter into marriage with them because the said judgement has affected the status of the parties. Where a judgment changes the status/title of a person or thing, it is in rem. A judgment in a representative suit will only bind the parties on whose behalf the suit was contested as Plaintiff and Defendants and not third parties. A judgement in a representative suit is not a judgment in rem unless it alters the status or title. It is incorrect to say that a representative proceedings, such as winding up proceedings or a representative suit is a proceedings in rem. It is only a proceedings in personam. The suit between husband and wife was not representative in nature, but where it culminates in a decree for divorce, the judgment is in rem, namely, that it is as against the whole world, in the limited sense that the benefit of the judgment can be taken even by persons who were not parties to the said suit. The common misconception is that proceedings of a representative nature is necessarily a proceedings in rem. For instance, proceedings under the IBC when an RP is appointed and third-party rights are involved is erroneously held to be a proceedings in rem. This is manifestly wrong. I came across a recent judgment of the SC holding so.