SIMLA BANKING AND INDUSTRIAL CO., LTD. Vs. ABDUL GHAFOOR AND OTHERS
HIGH COURT OF PUNJAB AND HARYANA
Simla Banking And Industrial Co., Ltd.
Abdul Ghafoor And Others
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Kapur, J. -
(1.) THIS is a glaring case of the proverbial law's delays particularly in regard to execution matters. A preliminary decree for sale for the realisation of Rs. 30,382 with interest and costs was passed against one Abdul Ahad on 9th July 1924 and on 3rd March 1925 a final decree was passed. Abdul Ahad having died on 13th May 1928, a personal decree was obtained against his legal representatives to the extent of the estate in their possession some time later in 1928
(2.) SEVERAL applications for execution were filed but they do not seem to have resulted in the decree -holder being able to realise anything and the last application was made on 1st March 1937. In the course of these execution proceedings, an application was filed on 20th September 1937 for accounts of rents of two houses situate in Saniauli. This application was dismissed but on appeal Dalip Singh J. held on 5th May 1939 that a Receiver could be appointed. He relied on a judgment of Bhida J. in Sunder Singh v. Ganga Ram, : I. L. R. (1938) Lah. 305 : (A. I. R. 1938 Lah. 93) in which the appointment of a Receiver to take possession of property in an Indian State was held to be intra vires because the Court was acting in the exercise of its jurisdiction in personam over the defendant and could order the defendant to hand over the possession to the Receiver. On 21st March 1941, an application was made for the appointment of a Receiver in the executing Court. Although it was granted by one learned Senior Subordinate Judge on 2nd May 1941 it was rejected by his successor. This order was upheld by Din Muhammad J. on 11th June 1944 but a Division Bench in Letters Patent appeal reversing this judgment directed the appointment of a Receiver : see L. P. A NO. 135 of 1944, decided by Harries C. J. and Abdul Rahman J. On the case coming back the learned Senior Subordinate Judge, Simla, has again refused to appoint a Receiver on the ground that the property is in the possession of the custodian who can refuse to hand over the rents and profits to the person appointed Receiver. Against this order the decree -holder has come up in appeal.
(3.) IN my opinion, this appeal must succeed. The custodian is a party to these proceedings and any judgment passed against him is binding on him and he is bound to obey it. Under S. 8, Administration of Evacuee Property Act, Act XXXI  of 1950, property declared to be evacuee property under S. 7 is deemed to have vested in the Custodian for the State and any person in possession thereof is deemed to be holding it on behalf of the custodian. Under S. 9 of the Act, the custodian can take actual physical possession of the property if the person in possession refuses to surrender possession thereof to the custodian. Section 10 of the Act gives the powers and duties of the custodian generally. Sub -section (2) of S. 10 provides :
Without prejudice to the generality of the provisions, contained in sub -s. (1), the custodian may, for any of the purposes aforesaid :
(m) incur any expenditure, including the payment of taxes, duties, cesses and rates to Government......or of any debt due by the evacuee to any person.
He has under this section power to transfer the evacuee property, to sell it with the previous approval of the Custodian -General and can delegate any of his functions under this Act to such officers or persons as he thinks fit. Under S. 17 any property which has vested in the custodian becomes not liable to attachment, distress or sale in execution of an order of a Court or of any other authority, and no injunction in respect of any such property can be granted by any Court or other authority. Section 46 of the Act bars the jurisdiction of civil Courts in certain matters and the respondent custodian relies on sub -cl. (d) which says :
(d) in respect of any matter which the Custodian -General or the custodian is empowered by or under this Act to determine.
The submission is that the property having vested in the Receiver he has the power to determine certain things under S. 10 and, therefore, the jurisdiction of this Court is barred under S. 46 and also that execution by way of appointment of a Receiver amounts to equitable attachment within the provisions of S. 17 of this Act. I am unable to agree.;
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