LexJASWANT SINGH & ANR versus THE CUSTODIAN OF EVACUEE PROPERTY, NEW DELHI
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JASW ANT SINGH & ANR v. THE CUSTODIAN OF EVACUEE PROPERTY, NEW DELHI May 7, 1985 [A.P. SEN AND E.S. VtNKATARAMIAH, JJ,j 331 East Punjab Evaeuees' (Administration of Property) Act 1947 Sections 6 and 8 Administration of Evacuee Property (Chief Co1nmissioners' Pro•inces) A B Ordinance 1949 (Ordinance No. XII of 1949, Section 15 Administration of Evacuee C Proptrty Ordinance 1949 (Ordinance No. XXVII of 1949), Sections 2(f), 7 and 17. Decree holder-Properties of judgment debtor attached by Court on Ortobe« 9, 1947-Judgment debtor declared evacuee and property vesting in Custodian Court auction sale of properties on October 16, 1948-Purchase by decree holder-Setting aside of safe by Custodian whether n1aintai11ab!e-Crucial D dates-December 31, 1947 under Section 8(2) of 1947 Act-August 14, 1947 under section 17(2) ofOrdinauce XXVJI of 1949-App/icubility of Civil ProCedure Code 1908! Resjudicate-Principle-J.Fhen is a subsequent proceeding barred-Test for determination. Two brothers entered into an areegment to sell their interest in an Ice Factory situated at Rawalpindi and received the advance money. As the vendee failed to complete the transaction, a suit was filed by the brothers for specific performance of the agreement and for recovery of the balance consideration. The vendee remained exparate. A decree was passed by the Sub-Judge for the balance of the consideration money and the vendee was given liberty to apply to the court to get a regular sale deed. During the pendency of this suit the interest of one of the brothers was assigned in favour of the appellant who was impleaded in the suit. The vendee left India and was declared an evacuee. A Receiver was appoint~d for the properties of the vendee some of which were attached on October 9, 1947 and put to sale in execution, but at the instance of the aution-purchaser who became apprehensive on account of the judgment debtor being an evacuee, the sale was got set aside on July 10, 1948. On July 17, 1944 an application was filed by the Custodian of Evacuee Property under the Fast Punjab Evacuees' (Administration of Property) Act 1947 claiming that the attached properties were evacuee properties and under s. 8 were exempt from attachment. This application was dismissed on July 19, 1948 on the ground that a Receiver was appointed by the court who was in possession of the properties, and no step was taken by the Custodian under s. 6. F G H B c D E F G H 332 SUPREME COURT RBPORTS (1985] SUPPL, s.c.R. The attached properties were again brought to sale and on this occasion the appellant purchased the properties and the sale was confirmed on October 16, 1948. The East Punjab Act having been amended in 1948, another applica- tion was made hy the Custodian under the amended s. 8(2) of the Act on December 11, 1948. This application was rejected on the ground that the said provision was not applicable to court sales of property attached prior to December 31, 1947. The Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, 1949 was promulgated on July 10, 1949. The Custodian made an application under s. 15, on August 24, 194 for setting aside the sale but this was dismissed for default on December 10, 1949. However, during the pendency of this application another Ordinance the Administration of Evacuee Property Ordinance 1949 (Ordinance No. XXVII of 1949) was promulgated with effect from October 18, 1949. l~he Custodian made an application on December 12, 1949 both under order 9. rule 9 of the Code of Civil Procedure 1908 and under s.17(2) of Ordinance No, XXVIJ of 1949 for restoration of the application dismissed for default on December 10, 1949, and for setting aside the sale. The sub·court restored the application on February 11, 1950 but after hearing the application on February 28, 1950 dismissed the same on March 24, 1950. The Custodian Hied an appeal before the High Court against the order of the Suh-fudge, dated March 24, 1950, contending that the Sub-Judge had erred in not considering the effect of s. 17 of Ordinance XXVII of 1949, but the appeal was dismissed, on the ground that as the earlier order dated March 28, 1949 passed by the Sub-Judge on the basis of the Fast Punjab Act had became final, it was not open to the Custodian to reagitate the matter again after the promulgation of Ordinance No. XXVll of 1949, The Custodian filed a Letters Patent Appeal which
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