HARBANS SINGH Vs. CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) The property in question was mortgaged by Modh. Ismail, respondent No. 9 and at the instance of the mortgagee, who had filed a suit and in whose favour a Mortgage Decree had been passed it was put to sale through the Court Auctioner. In this sale, Kabool Singh (Original appellant) and Raghunath Das (original respondent No. 2) were declared the joint purchasers and the sale in their favour was confirmed by an order of the Court dated January 19, 1952. It is not disputed that Raghunath Das (original respondent no. 2) transferred all his rights, title and interest as an auction purchaser in favour of Kabool Singh aforesaid.

(2.) Since the property was tenanted, mere symbolical possession was given to Kabool Singh on February 28, 1952 under Rule 96 of Order 21 Civil Procedure Code. After a few years of obtaining symbolical possession Kabool Singh on February 2, 1956 filed a suit which was dealt with by the Additional Judge, Small Cause Court, against Lekh Ram resisted the suit on the ground. Inter alia, that the property was evacuee property and that the Custodian of Evacuee Property should be impleaded as a party defendant. Upon this objection, the Custodian was impleaded and on July 20,1956, he raised an objection that inasmuch as the property had vested in him under the provisions of the Administration of Evacuee Property (Chief Commissioner's Province) Ordinance Xii of 1949, the sale thereof, was void and ineffective by reason of the provisions of S. 17 of the Administration of Evacuee Property Act 31 of 1950. The claim of the Custodian was rejected by an Order of the Additional Judge, Small Cause Court on December 18, 1956.

(3.) In the meantime, the Custodian, filed an application in the Court of Mr. P.R. Aggarwal, Sub-Judge, 1st Class Delhi which was the executing Court in so far as the aforesaid mortgage decree was concerned. This application was filed on October 4, 1956 under Section 17 of the Administration of Evacuee Property Act 1950 read with S. 151 of the Civil Procedure Code. The executing Court dismissed this application by its order dated August 14, 1957 on the ground that it was barred by res judicata on account of the aforesaid order dated December 18, 1956 of the Additional Judge, Small Cause Court.