BHIRGUNANDAN PRASAD Vs. ASSISTANT CUSTODIAN

JUDGEMENT

(1.) This appeal is brought on behalf of the decree-holders against the order of the Additional Subordinate Judge of Patna, dated 11-2-1953, setting aside the sale of a house under section 17 of the Administration of Evacuee Property Act, 1950, as subsequenty amended by Act XXII of 1951. Civil Revn. No. 318 of 1953 is filed on behalf of the same decree-holders against the same order of the Additional Subordinate Judge, dated 11-2-1953. The Civil Revn. application has been filed by way of precaution and has been heard along with, the Miscellaneous Appeal.

(2.) The house in question was mortgaged on 19-7-1928, by Ayodhya Prasad and others in favour of Damodar Prasad. On 23-10-1937, the mortgagors sold the equity of redemption to Musammat Chand Tara for about Rs. 12,000/- on 21-12-1939, the mortgagees brought a suit upon the mortgage against the original mortgagor and a preliminary decree was obtained on 31-2-1942. A final mortgage decree was passed on 24-5-1945, and the decree-holders applied for execution of the decree on 11-3-1948. It appears that on 29-10-1949, Musammat Chand Tara was declared an evacuee and her properties were declared evacuee properties under the Bihar Administration of Property Ordinance. On 26-11-1952, the mortgaged house was sold in execution proceedings and was purchased by Sri-mati Lakshmi Devi, respondent No. 25. On 20-12-1952, the Assistant Custodian applied to the Subordinate Judge for setting aside the execution Sale under section 17 of the Administration of Evacuee Property Act. The application was allowed by the Subordinate Judge on 11-2-1953 and the sale of the house was set aside.

(3.) It is necessary at this 'stage to reproduce section 17 of the Administration of Evacuee Property Act, 1950, as amended by Act 22 of 1951, as much of the argument in this case turned upon the language of the section. Section 17 is in the following terms: