JAGARNATH JAIN Vs. P C BHAGAT

JUDGEMENT

(1.) In these cases the petitioners have obtained a rule from the High Court asking the Opposite Party to show cause why the order of the Subordinate Judge of Hazaribagh, dated the 2nd February, 1957, in Miscellaneous Judicial Cased Nos. 7 and 27 of 1956, should not be set aside by the High Court in exercise of its revisional jurisdiction.

(2.) It appears that the petitioners had brought separate suits against Messrs. Oriental Ltd. for recovery of different sums of money. The suits were decreed in the Court of the Subordinate Judge of Hazaribagh with interests and costs. In Money Execution Case No. 29 of 1953 the decree-holder prayed for attachment of Rs. 68,049/- and odd out of the sum of Rs. 69,806/- belonging to the judgment-debtor and at present in the control of the Custodian of Evacuee Properties and in deposit in the Hazaribagh Treasury. In, Money Execution Case No. 4 of 1956 the decree-holder prayed for attachment of a sum of Rs. 11,000/- out of the same amount in deposit in the Hazaribagh. Treasury. In both these cases the Subordinate Judge, had issued prohibitory notices under Order 21, Rule 52, Code of Civil Procedure, but the Deputy Custodian of Evacuee Properties raised objection to the attachment of the amount. It was contended on his be half that the amount had vested in the Custodian under the provisions of the Administration of Evacuee Property Act, 1950, and it was not liable to attachment under the order of the Court because of the provisions of Section 17 of that statute. The objection was allowed by the Subordinate Judge who vacated the order of attachment in both the execution cases.

(3.) In support of these applications learned Counsel on behalf of the petitioners contended in the first place that Messrs, Oriental Ltd. was a limited Company incorporated under the Indian Companies Act, and under the provisions of the Administration of Evacuee Property Act, 1950, a limited liability Company cannot claim to be an evacuee and the properties of the limited liability Company cannot be declared as evacuee properties. In sup port of this proposition learned Counsel relied upon the observations of Rajamannar, C. J. in Hooson Kasam Dada (India) Ltd. v. Custodian of Evacuee Properly, Madras, AIR 1951 Mad 876 (1). 6n be half of the opposite party, however, the learned Government Pleader said that the point was never raised before the learned Subordinate Judge and it was never contended before him that Messrs. Oriental Ltd. was a limited Company and its properties could not be declared as evacuee properties under the provisions of the Administration of Evacuee Property Act. The Government Pleader also referred to a decision of a Full Bench of the Allahabad High Court in Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 740 holding that the properties of a limited Company incorporated under the Indian Companies Act can be declared as evacuee properties in view of the special provisions of the Administration of Evacuee Property Act. We do not, however, wish to express and final opinion on the question of law because it is not clear from the record of the case whether Messrs. Oriental Ltd. was actually incorporated as a limited Company under the provisions of the Indian Companies Act. The learned Government Pleader on behalf of the opposite party submitted that Messrs. Oriental Ltd. was a firm and not a limited Company, and in support of this argument referred to the language of the notification of the Deputy Custodian, dated the 20th May, 1953, published at page 1894 of the Bihar Gazette of the 22nd July, 1953. It is, therefore, manifest that the question whether Messrs, Oriental Ltd., who was the judgment-debtor in the execution case, was a limited Company or a partnership firm has not been determined by the executing Court; and since the question was not raised before it, it is not possible for us to permit the petitioners to raise this mixed question of law and fact in this civil revision application for the first time and it is also not possible for us to remand this case to the executing Court for an investigation of the question of fact involved in the submission of learned Counsel for the petitioners. We, therefore, cannot permit Counsel for the petitioners to address this argument in this case.