CUSTODIAN EVACUEE PROPERTY DELHI Vs. RAM KISHAN

JUDGEMENT

(1.) On 30-1-1948, the Senior Subordinate Judge, Gurgaon, passed au 'ex parte' decree in Civil Suit No. 443 of 1946 for a sum of Rs. 19,023/- with proportionate costs aggregating to Rs. 1,740/8/- against Khan Bahadur Sayed Nawab Ali and Sons, 8, Keeling Road, New Delhi. On 20-2-1948, the Court which passed the decree sent the decree to the District Judge at Delhi for execution. On 15-5-1948, the decree-holders sued out execution at Delhi and in execution proceedings bungalow No. 8, Keeling Road. New Delhi, was attached on 9-6-1948. On 19-6-1948, the decree-holders applied under Rule 66 of Order XXI, Civil P. C. that the proclamation of sale by public auction may be drawn up after notice to the judgment-debtor. In para 5 of that application the decreeholders stated that the Judgment-debtor had migrated to Pakistan. Notice was issued to the judgment-debtor under Rule 66 of Order XXI, Civil P. C. for 24-7- 1948. The bailiff, however, reported on 29-6-1948, that the whereabouts of the judgment-debtor were not traceable.

(2.) On the application made by the decree-holders on 29-6-1948 the Court ordered that the judgment-debtor may be served by publication of notice in the Civil and Military Gazette of Lahore and pursuant to that order the judgmentdebtors were served by publication of notice in the issue of the Civil and Military Gazette for 18-8-1948. On 5-10-1948, notice was sent to the Custodian to file objections to the proposed sale, if any, on 16-10-1948, in the Court of the Senior Subordinate Judge at Delhi. This notice was served on the Custodian on 15-10-1948.

(3.) On 9-6-1948 when the attachment took place the East Punjab Evacuees' (Administration of Property) Act, 1947, hereinafter referred to as the Act, was in force in the Province of Delhi. Under Section 4 of the Act the property in question vested in the Custodian. That being so, the property was not liable to attachment and sale. On this point Section 8 of the Act may be seen. Section 8 of the Act reads: "8. Exemption from attachment, distress or sale: 1. All property which vests in the Custodian shall be exempt from attachment, distress or sale in execution of the decree of a Civil or Revenue Court or in pursuance of the order of any other authority. 2. ALL subsisting attachments of evacuees' property effected after 13- 9-1947, under orders of a Civil or Revenue Court or Officer or other authority shall cease to have any effect, and ait sales, lenses or other forms of alienation by any Court, officer or authority of such property effected after the above-mentioned date shall be liable to be set aside at the instance of the Custodian on an application filed before the Court, officer or authority which ordered the sale, lease or alienation, as the case may be, within three months of the coming into force of East Punjab Evacuees' (Administration of Property) (Second Amendment) Ordinance, 1948, or the date of the sale, lease or alienation, which ever is later." Notwithstanding the prohibition contained in Section 8 of the Act the property was put to sale and was sold in favour of L. Hira Lal on 17-11-1948, for Rs. 2,21,000/-.