CUSTODIANEVACUEE PROPERTYJULLUNDUR Vs. FIRM DHARAM PAUL ASU RAM

JUDGEMENT

(1.) This matter arising out of an order made in execution proceedings came up in the first instance before Bishan Narain J. who has referred it to a larger Bench for the reason that the point is frequently occurring and is of some importance. The matter relates to the interpretation of S. 17(2) of the Administration of Evacuee Property Ordinance (Ordinance No. XXVII of 1949) which is in the following terms:

(2.) The matter arose in the following way: In January 1948 the firm Dharam Pal Assu Ram instituted a suit against Bashir Ahmad and Walli Mohd. for the recovery of a sum of money. This suit was decreed on 21-4-1948, and shortly afterwards the house of the judgment-debtors was put up to sale in execution proceedings and sale for Rs. 1,850/-. The house was bought by Ganpat Mal and Harbans Lal who is the minor son of the decree-holder Assu Ram. The Custodian, on coming to know of this sale, now stepped in and filed objections under O. 21, R. 58, C.P.C., and also under the evacuee law claiming that the sale was void and liable to be set aside. These objections were filed by him on 17-7-1948, and a few days later, they were dismissed and the sale was confirmed on the ground that the auction-purchaser had not been made a party by the Custodian. The Custodian filed an appeal, and the District Judge dismissed it on 29-4-1949. A second appeal brought to this Court met the same fate on 15-3-1951. The Custodian had, in the meantime, put in another objection petition on 2710-1948 under S. 8(2) of Act XIV of 1947. On this occasion, too, he did not make, the auction-purchaser a party, and on this ground his objections were dismissed on 11-5-1949. Then on 10-8-1949 the Custodian filed a third application under S. 15 (2) of the East Punjab Evacuee Property (Administration) Ordinance (Ordinance No. IX of 1949). A fourth application was filed on 6-1-1950 under section 17(2) of Ordinance No. XXVII of 1949. The third and the fourth objection petitions were heard together, and on 7-6-1954 the executing Court allowed these objections and set aside the sale. The District Judge on appeal reversed the decision and dismissed the Custodian's objections. It is against this order of the District Judge that the present appeal has been brought to this Court by the Custodian, and it has been urged on his behalf that the sale is liable to be set aside under the provisions of S. 17 (2) quoted above.

(3.) As against this, it has been urged that the objections of the Custodian are barred by the principle of res judicata and also on the ground of limitation. It has been urged on behalf of the respondents that on two previous occasions the Custodian raised exactly similar objections and they were dismissed; he cannot now raise the same objections on the same grounds. It is further contended that the Custodian failed to make the auction-purchaser a party and he cannot now, after the lapse of the prescribed statutory period, raise similar objections.