- (1.) The appeal by special leave arises from the judgment of the Judicial Commissioner, Goa, Daman and Diu in First Civil Appeal No.13 of 1972 dated July 27, 1976. The facts are as under : Shri Timoteo Gonsalves, the husband of the first respondent, was the owner of the property. He, on October 23, 1954, hypothecated his house with a plot of land situated in Ribander in Goa in favourof Fernando D. Aiala e Costa and his wife Maria Ema for a sum of Rs.12,500/-. He migrated to Portugal. As a consequence, his property was declared to be the evacuee prorperty on December 22, 1966 under the Goa, Daman and Diu Administration of Evacuee Property Act, 1964, Act No. 6/64 (for short the "Act"), which came into force w.e.f. December 24, 1964. The property was put to sale at a public auction and the appellant had purchased it on February 27, 1968 and a sale certificate was given and was registered on October 14, 1969. The respondent Nos. 1-6 are the legal representatives of the mortgagee. They laid the suit on October 31, 1969 for the recovery of the debt from the evacuee with a charge on the hypotheca. The trial Court decreed the suit on March 1, 1972 which was confirmed by the Judicial Commissioner under the impugned judgment.
(2.) The learned counsel for the appellant has strenuously contended that by declaration of the evacuee property under S.2(c) of the Act, by conjoint operation of S.3 and S.8(2) (i) and 37 of the Act, the Civil Court has been divested of the juridiction to grant the decree. The mortgagees respondents have only the remedy to proceed before the Custodian of the evacuee property by operation of the proviso to S. 8 (2) (i) of the Act, since S. 3 has given overriding effect over any other law including the Transfer of Property Act. The jurisdiction of the Civil Court has been thus divested by operation of S. 37. If any right or liability exists against the property, the mortgagees only have a right to proceed against the Custodian of the evacuee property but not by way of a suit and that, therefore, the Courts below have committed manifest error of law in granting the decree. Though the contention, prima facie, is attractive on deeper probe, we find it difficult to accept the contention. Section 16 of the Act envisages that:- "Section 16, Exemption of evacuee property from process of courts, etc. - Save as otherwise expressly provided in this Act, no evacuee property which has vested or is deemed to have vested in the Custodian under the provisons of the Act shall, so long as it remains so vested be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or authority and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencement of this Act, shall cease to have effect on such commencement and shall be deemed to be void."
(3.) Section 16 gives only overriding effect over any other law so long as the evacuee property remains so vested in the Custodian of the evacuee property and no Court or any other proceedings in any manner shall and whatsoever either in execution of any decree or order of any Court or authority, and any attachment or injunction or order shall not be effective so long as the property remains vested in the Custodian. Section 16 of the Central Act, 1951, which is in pari materia has been interpreted by this Court in Raja Bhanupratap Singh v. Assistant Custodian, Evacuee Property, U. P. (1966) 1 SCR 304 at 308A : (AIR 1966 SC 245 at p. 247) thus :- "The second part of the sub-section deals with avoidance of attachment, or injunction or order for the appointment of a receiver in respect of any evacuee property - subsisting on the date of the commencement of the Act of 1951, and the first part interdicts recourse to the evacuee property so long as it remains vested in the Custodian, by process of any court or authority for obtaining satisfaction of any claim against the property.";