FAQIR CHAND AGGARWAL Vs. BHAGWANTI

JUDGEMENT

(1.) FAQIR Chand Aggrawal had a decree for about Rs. 25,000/- against one Molua bux. In execution of that decree machinery belonging to the judgment-debtor was auctioned on 21-4-1948 and was purchased by Faqir Chand and Mansa Singh jointly for Rs. 72,000/ -. In their turn they sold this property to Mst. Bhagwanti on 15-7-1948 for Rs. 85,000/ -. Thereafter the East Punjab Evacuees' (Administration of Property) (Second Amendment) Ordinance, 1948 (Ordinance No. XVI of 1948)was promulgated on 30-7-1948. The Custodian applied under Section 8 (2) of the ordinance to get the sale set -aside. The executing Court dismissed this application on 29-3-1950. The Custodian filed a revision petition in the High Court and during its pendency the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) came into force. Kapur J. decided the petition on 29-3-1951. Mst. Bhagwanti then filed a suit in 1954 for the refund of the price paid by her to Faqir Chand and Mansa Singh with interest thereon on the allegation that she had been dispossessed by the Custodian under orders of the High Court. In March, 1955, eighteen issues were framed in the suit including those relating to limitation and res judicata. Issue No. 3 reads: 3. Whether the Punjab Ordinance No. XVI of 1948 and Central Act XXXI of 1950 are ultra vires so far as they relate to the setting aside of the sale of the movable property of evacuees. The present petition has been filed by Faqir Chand under Article 228 of the Constitution praying that the question of law contained in issue No. 3 should be decided by this court on the ground that Section 8 (2) of the Punjab Ordinance violated section 299 of the Government of India Act, 1935, and that Section 17 (2) of the Central Act XXXI of 1950 violated Article 31 of the constitution.

(2.) NOW Section 8 (2) of the Ordinance and Section 17 (2) of the Central Act lay down that any sale of evacuee property after 1-3-1947 in execution of a decree shall be set aside on the application of the Custodian provided he files the application within the time prescribed in these provisions. The issues raised in this case challenge the validity and the vires of this provision of law. This question obviously comes within the proviso to Section 113. Civil Procedure Code as was held by me on the application of Faqir Chand in Civil Revision No. 95 of 1955. Reading Article 147 and Art 228 together, it is clear that the question involved in the present case is also a question as to the interpretation of the Constitution inasmuch as the validity of these sections is challenged on the ground that they contravene constitutional provisions: vide Ganga Pratap Singh v. Allahabad Bank ltd. , AIR 1958 SC 293 (A ).

(3.) ALL the conditions necessary excepting one condition for an order under Article 228 exist in the present case. The only point that requires determination is whether or not under Article 228 of the Constitution the decision of this issue is necessary for the disposal of the suit. This condition is specifically laid down in this article. The use of this language in this Article can only mean that the question involv-ed must be such that it is not possible to dispose of the suit without determining the con-stitutional question raised. In my opinion, where independent of the constitutional question there are questions which are sufficient in themselves to dispose of the case, then the High qir Chand Aggarwal vs. Smt. Bhagwanti and Ors. (11. 04. 1958 -PHHC) Page 3 of 3 court should not take any action under Article 228 of the Constitution. It appears that in America also no law is declared to be unconstitutional if the case can be disposed of in some other way. In Willoughby's Treatise on the Constitution of the united States the practice in America has been described as follows: