DUNI CHAND RAM DASS DECREE HOLDER Vs. IBRAHIM
HIGH COURT OF PUNJAB AND HARYANA
DUNI CHAND RAM DASS, DECREE-HOLDER
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Kapur, J. -
(1.) This is an appeal brought by the decree-holders against an order passed by the executing Court dated 22-10-1952 holding that as the property sought to be sold in execution of the decree was evacuee property, execution could not proceed under Section 17 of the Evacuee Property Act, 1950.
(2.) It is necessary in this case to give the facts in some detail. On 19-11-1947 the decree-holders got a decree for rupees ten thousand odd against Ibrahim. The decree-holders applied for execution of their decree on the 2nd December 1947, Mr. Bhatnagar, Subordinate Judge 1st Class held that because of the Administration of Evacuee Property Act the execution could not proceed and he consigned it to the record room. The decree-holders came up in appeal to this Court and on the 13th June 1949 the appeal was dismissed 'in limine', but it was observed by the Bench:
"The dismissal of this appeal shall not prejudice the appellant's right to move the executing Court by means of an application for vacation of the order appealed from and on such application being made if the appellant can by satisfactory evidence prove that the judgment-debtor is in fact not an evacuee and that the property in question has not vested in the Custodian the executing Court shall of course proceed to execute the decree." Thus it was held by this Court that it was open to the decree-holders to prove that the judgment-debtor was not an evacuee or that the property in question did not vest in the Custodian.
(3.) The decree-holders made an application to the Assistant Custodian, Evacuee Property, Dharamsala, for registration, of their claim of the decretal amount. The Assistant Custodian held that the property left by the judgment-debtor had wrongly been taken to be evacuee property by the Custodian staff and that the judgment-debtor was in Kashmir and had been in communication with the decree- holders and had even borrowed some money from them and the property could not therefore be treated as evacuee property and the civil Courts at Kullu
"should be able to satisfy the claimants' decree by proceeding against the judgmentdebtor's above property". He referred the matter to the Assistant Custodian (Judicial) who was also the Senior Subordinate Judge, Dharamsala. This authority on 6-11-1931 held that Ibrahim was not an evacuee and the property held by him at Kullu should not have been held as evacuee property and that
"it should now be released from the operation of the Evacuee Property Act on the ground that it is not evacuee property.";
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