E. S. Venkataramiah, J. - (1.) Sardar Mela Singh and Sardar Hari Singh were brothers. They jointly owned an Ice Factory At Rawalpindi which was known as 'Sat Kartar Ice Factory'. They entered into an agreement on Aug. 6,1947 with one Saghir Ahmed, who was a resident of Delhi, to sell in his favour one-half of their interest in the said Ice Factory for a sum of Rs. 90,000/- and received Rs. 5,000/- by way of advance. Saghir Ahmed agreed to pay the balance of Rs. 85,000/- and to complete the sale transaction within a month but he failed to do so. Saghir Ahmed having left India became an evacuee. Sardar Mela Singh and Sardar Hari Singh anticipating that Saghir Ahmed was likely to get possession of the Ice Factory on the basis of the agreement to sell executed in his favour instituted a suit in forma pauperis on Oct. 1, 1947 in Suit No. 3 of 1947 on the file of the Senior Sub-Judge at Delhi for specific performance of the agreement to sell and inter alia prayed for a decree for a sum of Rs. 85,000/- which was the balance of the consideration payable under the agreement to sell referred to above and for Rs. 5,000/- as compensation for the loss caused by Saghir Ahmed in not completing the transaction of sale in time. They stated that on his paying the balance of consideration. a sale deed may be obtained from them by Saghir Ahmed. Saghir Ahmed remained ex parte and the suit was heard in his absence. On Nov. 20. 1947 a decree was passed in the suit by the Sub-Judge. Ist Class, Delhi against Saghir Ahmed, directing him to pay to Sardar Mela Singh and Sardar Hari Singh, the plaintiffs in the, suit, a sum of Rs. 86,000/- along with costs of Rs. 2967/8/-. Saghir Ahmed was given liberty to apply to the court to get a regular sale deed executed by the plaintiffs. It may be stated here that during the pendency of the suit the interest of Sardar Mela Singh under the agreement had been assigned in favour of one Jaswant Singh, who was impleaded as plaintiff No. 3 in the suit. Thus Jaswant Singh became a decree-holder under the decree passed, as stated above. That on Oct. 3. 1947 on an application made by the plaintiffs a Receiver was appointed by the court to take possession of some of the properties of Saghir Ahmed. That on Oct. 9, 1947 on an application made by the plaintiffs certain Immovable properties belonging to Saghir Ahmed, namely residential Rats Nos. 5 and 7 together with some shops which were situated in Panchkuan Road, New Delhi and another immovable property situate in Ghee Mandi, Pahar Ganj, Delhi were attached before judgment, After the decree was passed by the court, the attached properties were put to sale in execution, but at the instance of the auction purchaser, who apparently had become apprehensive on account of the status of Saghir Ahmed, who had become an evacuee, the said was set aside on July 10, 1948. The Custodian of Evacuee Property, Delhi filed an application before the executing court on July 17, 1948 claiming that the attached properties were evacuee properties under the East Punjab Evacuees' (Administration of Property) Act, 1947 (Fast Punjab Act No. XIV of 1947) (hereinafter referred to as 'the East Punjab Act'), which was extended to Delhi also and that under S. 8 of that Act all properties of which the Custodian had taken possession under S. 6 thereof were exempt from attachment. That application was dismissed on July 19, 1948 on the ground that the Receiver appointed by the court was in possession of the properties and no steps had been taken by the Custodian under S. 6 of that Act. The attached properties were again brought to sale and on this occasion the properties were purchased by Jaswant Singh, one of the decree-holders. The sale was confirmed on Oct. 16, 1948. The East Punjab Act was amended in 1948. After such amendment sub-s. (2) of S. 8 of that Act, as extended to Delhi, read as follows:"8(2) All subsisting attachments of evacuees' property effected after 31st December, 1947 under orders of a Civil or Revenue Court or Officer or other authority shall cease to have any effect, and all sales, leases or other forms of alienation by any Court, Officer or authority of such property effected after the above mentioned date shall be liable to, be set aside at the instance of the Custodian on an application filed before the Court, officer or authority which ordered the sale, lease or alienation, as the case may be, within three months of the coming into force of East Punjab Evacuees' (Administration of Property) (Second Amendment) Ordinance, 1948, or the date of the sale, lease or alienation whichever is later."
(2.) After the said amendment, the Custodian of the Evacuee Property made another application on Dec., 11, 1948 before the learned Sub-Judge claiming that the sale of the properties by the court was ineffective since the sale had taken place after Dec. 31, 1947, That application was rejected by the learned Sub-Judge holding that the sald provision did not affect the court sales of properties which had been attached prior to Dec. 31, 1947 and that in the Instant case the properties that had been sold had been attached on Oct. 9,1947. The said order of the learned Sub-Judge was passed on March 28, 1949 and it became final.
(3.) Thereafter on June 13, 1949 the Governor-General of India passed an Ordinance called the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, 1949 (Ordinance No. XII of 1949). Section 15 of that Ordinance provided- "15. Exemption from attachment, sale etc. (1) Save as otherwise expressly provided in this Ordinance, no property which has vested in the Custodian shall be liable to attachment, distress or sale in execution of a decree or order of a Court or any other authority, and no injunction in respect of any such property shall be granted by 'any Court or other authority. (2) Any attachment or injunction subsisting on the commencement of this Ordinance in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement, and any transfer of such property under the orders of a Court or any other authority made after such date as may be specified in this behalf with reference to any Province by the Central, Government by notification in the Official Gazette, shall be set aside if an application is made to such Court or authority by or at the instance of the Custodian within three months from the commencement of this Ordinance.";