Decided on April 09,1952

RAJMAL Appellant
PEPKANWAR Respondents


Wanchoo, C.J. - (1.)This is an application by Rajmal and Manmal for review of judgment of the Ijlas-i-Khas of the former State of Jodhpur and has come up to us for disposal in view of the provisions of Ordinance No. XL. (40) of 1949 and Ordinance No. XII (12) of 1950.
(2.)The application was made in the following circumstances. Rajmal and Manmal were decree-holders and put their decree in execution in the Court of the District Judge. While the execution proceedings were pending, the estate or the judgment-debtor Jalam Singh, who is now represented by his legal representatives, was taken over by the Court of Wards. The usual notice was then issued by the Court of Wards inviting claims against the estate of the judgment-debtor in the prescribed manner. No claim was said to have been presented by the decree-holders though the District Judge had sent information to the Court of Wards about the decree in execution. Ultimately the estate was discharged from the superintendence of the Court of Wards and thereupon a fresh application for execution of the decree was made by the decree-holders. The question then arose whether the debt due under the decree had been discharged in view of Section 34 of the Marwar Court of Wards Act which provided that every claim of the nature specified in Section 32 against a ward or his property which had not been notified under that section shall be deemed, for all purposes and on all occasions, to have been duly discharged. The District Judge decided this question in favour of the decree-holder. The High Court of the former State of Jodhpur in appeal allowed the appeal and decided the matter in favour of the judgment-debtor. Thereupon there was an appeal to the Ijlas-i-Khas and the Members of the Judicial Committee advised His Highness the Maharaja Sahib Bahadur that the appeal be dismissed and this recommendation was approved by His Highness on the 11th of April, 1948. Thereafter the present application was made for review of the order of His Highness on the 3rd of August 1948. This application remained pending and no notice was issued on this application by His Highness till the integration on the 7th of April 1949. All petitions which were pending in the Ijlas-i-Khas, came to this Court for disposal under the provisions of the two Ordinances which we have already mentioned and notice was issued by a Bench of this Court on 21st of November, 1950.
(3.)A preliminary objection has been taken on behalf of the respondents opposite party that as no notice had been issued by His Highness the Maharaja of Jodhpur before Ordinance No. XL (40) of 1949 came into force, Order XLVII, Rule 2 applied to this matter and we cannot dispose of the petition in view of the provisions of Order XLVII, Rule 2. A similar point arose before us in -- 'Harlal v. Subh Karan', Misc. Case No. 7 of 1950 which was decided on the 8th of February 1952. In that case, after a review of the law, we came to the conclusion that we could not dispose of the petition as notice had not been issued by His Highness the Maharaja of Jodhpur and Order XLVII, Rule 2 stood in the way of our hearing the petition on the merits. In that judgment, we used the following words : "In any case, the words of Order XLVII, Rule 2 are quite clear and, therefore, this Court as the successor to Ijlas-i-Khas cannot dispose of this application as notice was not issued by the Ijlas-i-Khas."

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