Decided on February 11,1960

RAM AUTAR Appellant


Chhangani, J. - (1.)THESE two appeals by the decree-holder Ramautar raise identical questions and shall be disposed of by one judgment.
(2.)THE facts giving rise to them are briefly as follows : Ramautar, the decree-holder had two money decrees; one for Rs. 6, 350/- and costs passed on 26. 7. 48 and the other for Rs. 6,200/- and costs passed on 17. 5. 48, in his favour by the District Judge, Sambhar Shamlat. He took out execution proceedings in respect of both these decrees on 19. 1. 49 for which execution cases Nos. 8 and 9 of 1950 were registered. THE decree-holder got some immovable property attached. However, the same property had been attached earlier in the execution of a decree in favour of firm Kapoor Chand against the same judgment-debtors in execution case No. 3 of 1950. Proceedings for sale naturally continued in the execution case of Kapoor Chand and the sale of the property was knocked down on 29th of May, 1949, and the final bid was accepted by the court on 3lst of May, 1949. THE sale was confirmed on 15th of July, 1949, and it was ordered by the execution court that the sale proceeds be ratably distributed amongst the various decree-holders. THE decree-holder Ramautar thus became entitled to realise out of the sale proceeds such amounts as may be ultimately found, on calculation, due to him in connection with his two decrees.
For some reason or the other, the precise amount payable to the various decree-holders could not be determined and paid to them, and the execution proceedings were subsequently transferred to the Court of the District Judge, Jaipur. In the latter Court, on 22nd of September, 1952, Shri Jugal Kishore, Advocate, appearing on behalf of the Deputy Custodian, Jaipur, submitted an application praying that the Deputy Custodian, Evacuee property, Jaipur, may be added as a party in the execution proceedings. It was alleged in the application that Manzoor Ali and Imtiaz Ali, the judgment-debtors, being evacuees, a question relating to the property of the evacuees was involved in the proceedings, and as such, the Deputy Custodian was a necessary party. The Court vide its order dated 14th of November, 1952, accepted the application and directed the addition of the Deputy Custodian as a party. On 19th of December, 1952, Shri Jugal Kishore, Advocate, on behalf of the Deputy Custodian filed objections in the execution proceedings challenging the sale of the property It was urged in the first instance that the property in dispute having vested in the Custodian before the sale by the civil court, the said sale was null and void. It was also added that the sale having been effected without any notice or information to the Deputy Custodian was null and void on that ground also. Alternatively, it was claimed that the sale proceeds deposited in the Court are evacuee property, and the Custodian is entitled to receive them. Finally, the Additional Deputy Custodian, Evacuee Property, Jaipur, passed an order on 18th of August; 1953, declaring Imtiaz Ali as evacuee and the sale proceeds received from his property as evacuee property. Intimating his decision to the execution court, the Additional Deputy Custodian, Evacuee Property, Jaipur, requested the Court to remit to him the amount of the sale proceeds. The claim on behalf of the Custodian was resisted by the various decree-holders claiming ratable distribution, including the present appellant Ramautar. Their contention was that an order for ratable distribution having been passed, the property in money vested in the various decree-holders, and the Deputy Custodian had no jurisdiction to declare the amount lying in Court on behalf of the decree-holders, as evacuee property. The validity and legality of the order of the Additional Deputy Custodian dated 18. 8. 1953 was questioned by them mainly on the ground that the order of the Additional Deputy Custodian was passed without notice to them. The execution Court allowed the claim of the Deputy Custodian and over-ruled the opposition of the decree-holders. It was of the opinion that under sec. 46 of the Administration of Evacuee Property Act, 1950, the Court had no jurisdiction to entertain and adjudicate upon any question, whether any property, or any right to or interest in any property is or is not evacuee property, and it cannot question the legality of any action taken by the Custodian. He directed that the sale proceeds shall be sent to the Deputy Custodian and directed the decree holders to file their claims, if any, before him. Ramautar decree-holder has filed the present appeals challenging the orders of the District Judge, Jaipur.

Mr. Hargopal appeard on behalf of the appellant, while Shri Raj Narain, Assistant Government Advocate, addressed us on behalf of the Custodian.

The question that was agitated with a good deal of vehemence on either side was, how far are the civil courts prevented from entertaining and adjudicating upon any question whether any property or any right to or interest in any property is or is not an evacuee property or from questioning the legality of any action taken by the Custodian General or the Custodian under the Administration of Evacuee Property Act. In this connection, a number of cases were cited at the Bar. There appear to be two rival views on this question. One view is represented by the decision in M. B. Namazi vs. Dy. Custodian (1) and has been consistently followed by the Punjab High Court; the latest case being Ramgopal vs. Banta Sing (2 ). According to this view, the question of administering evacuee property cannot involve judicial determination of complicated questions of title between non-evacuee claiming to be owner of a particular property and the Custodian claiming that the property belonged to the evacuee. Further referring to Entry 4l of List III of 7th Schedule of the Constitution of India, under which the legislation has been made, the Punjab High Court observes - ''the words 'custody, management and disposal' in Entry 41 of List III of the Seventh Schedule of the Constitution do not indicate the conferment of any such powers as only a civil court can have, namely, adjudication of disputes relating to title, which would clearly fall within the ambit of section 9 of the Code of Civil Procedure. " This view is based upon the principle that an enactment ousting the jurisdiction of the civil court should be very strictly interpreted.

Now coming to the opposite view, for a typical case, we may refer to S. M. Zaki vs. The State of Bibar (3), to which my lord the Chief Justice, then a Judge of the Patna High Court, was a party. The following observations of my lord the Chief Justice made in that case are very significant and instructive- "the Evacuee Ordinance and the Act came into being to meet an unparalleled situation arising in the country on account of the creation of the two Dominions of India and Pakistan It is common knowledge that during the period and even thereafter, there was migration of large populations from the Dominion of Pakistan to the Dominion of India and vice versa, and the people who fled from the Dominions left property behind; therefore, some legislation was necessary for the protection of those properties and for the management thereof. The provisions of the law quite clearly indicate that they were conceived in that spirit in order to meet such a situation. . . . . . "such a legislation although in certain cases may work some hardship, cannot be said to be an unreasonable legislation placing undue fetters upon the right to manage and hold property. One has to approach this legislation knowing that it is an emergency legislation and intended to deal with abnormal and usual times and conditions. "

These observations were quoted with approval in Amtubai Kamruddin vs. Daudbhai Akbarali (4) for a complete ouster of the jurisdiction of the civil courts. Indeed the observations are very weighty and emphasise the comprehensiveness of the legislation and lend support to an argument advanced for the exclusion of the jurisdiction of the civil courts. Further in the Patna case, Rameswami J. expressed a clear and definite opinion barring the jurisdiction of the civil courts.

The question, which one of the two rival views should be accepted, in view of the peculiar facts of the present case, is unnecessary to answer. In the case before us, the property of the judgment-debtors who were subsequently declared evacuee, was sold in May, 1949. The sale was confirmed on 15th of August, 1949, and the Court by directing ratable distribution of the assets by its order of that date vested the money in the decree-holders in certain specific shares, vide Basanta Kumar Bhattacharjee vs. Panchu Gopal Dutta (5 ). The actual distribution of the amount was largely a ministerial act and arose between the decree-holders inter se. After about 4 years on 18th of August, 1953, the Additional Deputy Custodian by declaring the sale proceeds to be evacuee property claims that the order vesting property in the decree-holders should be ignored and circumvented and the decree-holders should be deprived of their rights to the money which is required to be sent to the Custodian. Should this be allowed ? In other words, the precise question to be considered is whether the Custodian can be permitted to ignore and impliedly set aside the order of the civil court, divest the decree-holders of the property which had long since vested in them, and prevent the civil court from acting under and enforcing its orders and safeguarding rights created by them. Here as the facts stand the property of the judgment-debtors evacuees had been sold long since, and the sale proceeds were held by the Court for the benefit of the decreeholders. It was not a case here of the civil Court trying to assume jurisdiction in a matter in which the Custodian had exclusive jurisdiction; but it was a case where the Custodian was seeking to nullify the orders of the court which had become fully effective. Obviously there was no property of the evacuee in the hands of the Court in respect of which the Custodian could exercise jurisdiction, and sec. 45 of the' Evacuee Property Act did not authorise the Custodian to reopen orders of civil courts which had become final and effective.

On general principles, it may be observed that while one may easily appreciate a legislation ousting the jurisdiction of the civil courts in special and emergent conditions and circumstances, yet it is difficult to accept that by implication a legislation can permit the decisions and orders of civil courts to be ignored and circumvented by administrative agencies and tribunals so as to upset rights already finalised and determined by those courts. Acceptance of such a view would amount to a serious invasion on the field of the judiciary, and it would be an abuse of the provisions of sec. 46 of the Act to put any such interpretation on it.

(3.)THE present case appears to be covered by sec. 17, sub-sec. (2) of the Act. Sub-sec. (2) of sec. 17 reads as follows: - "where, after the 1st day of March, 1947 any evacuee property which has vested in the Custodian or is deemed to have vested in the Custodian under the provisions of this Act has been sold in execution of any decree or order of any Court or other authority, the sale shall be set aside if an application in that behalf has been made by the Custodian to such Court or authority on or before the 17th day of October, 1950. " It, therefore, enables the Custodian to apply for setting aside of sales effected before the commencement of the Act by putting an application on or before the 17th day of October, 1950. THE section gives ample time to the Custodian to acquaint himself with the facts and make an application for setting aside the court sale in due course. It clearly follows from the above that sales of properties of persons subsequently declared to be evacuees, must stand if the sales are not set aside under the provisions of this subsection. When sales remain intact and cannot be allowed to be disturbed, it must also follow that the legislature could never contemplate the declaration of the sale proceeds as evacuee property. Very absurd results will follow, if, while sales are to be recognised, the sale proceeds could be permitted to be reached by the Custodian, unless something was left out of the proceeds for payment the evacuee judgment-debtors. THE following illustration may be usefully be given at this stage.
A decree-holder in execution of a decree against certain Mohammedans gets immovable property attached and sold, and himself purchases the property for an amount more or less equal to the decretal amount. He is permitted to adjust the decretal amount against the purchase price. His decree is satisfied and execution case is dismissed. Subsequently, the Custodian declares the judgment-debtors to be evacuees and the sale proceeds to be evacuee property. On the view propounded on behalf of the under which the Custodian would decree-holder and would leave no under the decree have been already Custodian, it would lead to be anomalous situation succeed in obtaining the sale proceeds from the remedy to the latter, since his decree and his debt discharged under orders of a competent court. There can be no hesitation in coming to the conclusion that such a result could never be contemplated by the legislature and that it was never the intention of the legislature to permit the Custodian to ignore and circumvent the rights of parties created by the decisions of civil courts, which have become final and unalterable. Sec. 40 of the Evacuee Property Act also cannot be invoked in aid of such a step by the Custodian, because the section obviously applies to voluntary, sales and here the claim is now confined to the sale proceeds lying in the hands of the court and not to the property. In the case of court sales of this nature, the remedy of the Custodian lay under sec. 17 (2) only. The question posed above, therefore, must be answered in the negative. It is, therefore, clear that the Court having ordered ratable distribution on 15th of August, 1949, the money became the property of the decree-holder, vide Basanta Kumar Bhattacharjee vs. Panchu Gopal Dutta (5), and the Deputy Custodian's order dated 18th of August, l953,cannot in any way adversely affect the rights created under the orders of the civil courts or prevent the execution Court from enforcing it. The execution Court was clearly in error in refusing to 'direct payment of money to the various decree-holders and in ordering for the remittance of the amount to the Custodian. The order of the execution Court is, therefore, incorrect in law, and cannot be sustained.

I, therefore, accept the appeals and set aside the orders of the execution Court, and direct that the amount lying in the Court shall be distributed amongst the various decree-holders and need not be remitted to the Custodian. In the circumstances of the case, the parties will bear their own cost.

Sarjoo Prosad C. J.- I have had the advantage of reading the draft judgment prepared by my learned brother Chhangani J. , to which I have ventured to make my own suggestions. Since the point involved in these appeals is of some importance, I consider it necessary to add a few observation of my own.


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