MOHAMMAD HABIB Vs. MOHAMMAD USUF

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings of a decree held by the Appellant Mohammad Habib against Mohammad Usuf. From the judgment appealed against, it appears that the decree was for payment of a sum of Rs.18,340,94 and for the realisation of this amount the decree -holder applied to the executing Court for the attachment and sale of certain property belonging to the judgment -debtor which had been declared to be evacuee property and which had vested in the Custodian. The executing Court held that in view of the provisions of Section 17 of the Administration of Evacuee Property Act, 1950, as amended by Act No. 22 of 1951, the evacuee property was not liable to be proceeded against in any manner whatsoever in execution of the decree. The learned Judge of the executing Court also held that as directed by this Court in an appeal arising out of previous proceedings for the execution of the decree, the decree -holder could only ask the Court to move the Custodian under Section 10(2)(n) of the Act for the settlement of the decree -holder's claim out of the funds of the evacuee in his possession and that for this purpose the decree -holder should deposit the requisite process -fee. It is against this order that the present appeal has been preferred.

(2.) MR . Phadnis, Learned Counsel for the Appellant, contended that the decree under execution was rot a money decree but was a decree for the specific performance of contract to sell certain property; that the decree -holder had only sought that the property of the judgment -debtor to which the decree related and which had been declared to be evacuee property should be sold to him; and that Section 17 of the Administration of Evacuee Property Act, 1950, as it stood before it was amended by Act No. 22 of 1951, was applicable to the case and under that provision there was no bar to the sale of the property to the decree -holder in execution of his decree for specific performance. The argument was that Act No. 22 of 1951 which substituted a new section for the original Section 17 in Act, No. 31 of 1950 was itself repealed by the Repealing and Amend -Act No. 36 of 1957 and therefore, the original Section 17 should be held to have been restored.

(3.) IT is, however, not necessary to elaborate the matter further as Section 6 -A of the General Clauses Act, 1897, gives a complete answer to the contention advanced by the Learned Counsel for the Appellant. That section lays down: Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.