CUSTODIAN OF EVACUEE PROPERTY Vs. QABOOL SINGH

JUDGEMENT

(1.) The property in question in this Letterg Patent Appeal being property No. XII/6556 to 6572/4613 situated in Mughal- pura, Subzi Mandi, Delhi, was mortgaged by one Mohd. Ismail, respondent No. 9. At the instance of the mortgagee, in whose favour the mortgage decree had been passed, the said property was put to auction. The property in question was auctioned on 5th December, 1951 and Qabool Singh (original respondent No. 1) and Raghunath Das (original respondent No. 2) were declared the joint-purchasers. The sale in their favour was confirmed by an order of the court dated 19th January, 1952. It is an admitted fact that Raghunath Das transferred all his rights, title and interest as an auction- purchaser in favour of Qabool Singh.

(2.) . The aforesaid property in question was in occupation of tenants. It appears that symbolic possession of the same was given to Qabool Singh on 28th February, 1952 under order 21 rule 96 Civil Procedure Code A few years after obtaining the symbolic possession, Qabool Singh on 2nd February, 1956 filed a suit against Lekh Ram, one of the tenants, in the Small Causes Court, Delhi. The suit was for the recovery of arrears of rent. In the said suit the plea of Lekh Ram was that the property was evacuee property and the Custodian of Evacuee Property should be impleaded as a defendant. The Custodian was accordingly impleaded as a defendant. The plea of the Custodian that the sale by auction was void and ineffective by reason of the provisions of Section 17 of the Administration of Evacuee Property Act (hereinafter referred to as 'the said Act') was, however, rejected by the Additional Judge, Small Causes Court on 18th December, 1956.

(3.) . In the mean time the Custodian filed an application on 4th October, 1956, under Section 17 of the said Act read with Section 151 Civil Procedure Code before the Executing Court which had passed the aforesaid mortgage decree. The Executing Court dismissed the application on 14th August, 1957 on the ground that it was barred by res judicaia in view of the order dated 18th December, 1956 of the Additional Judge, Small Causes Court. Against both the orders dated 18th December, 1956 and 14th August, 1957 revision applications were filed in the Circuit Bench of the Punjab High Court at Delhi. By an order dated 2 7th January, 1961 both the orders were set aside and the cases were remanded for determination on the following three issues :