C.D. Parekh, J. - (1.) The Petitioner Assistant. Custodian, Evacuee Property, Agra Zone, •Agra, has filed this petition Under Article 226 of the Constitution and has prayed that the order of the Board of Revenue, Respondent No. 2, Annexure 5 to the writ petition, dated 1 -5 -1968 and the order of the Additional Commissioner, Jhansi Division, Jhansi, dated 26 -2 -1964, Annexure 4 to the writ petition, be quashed and Respondents 1 to 4 be restrained from proceeding with, the attachment and 'sale of the zamindari compensation bonds in respect of the zamindari interest of the evacuees in execution of the decree obtained by Mata Prasad, Respondent No. 1.
(2.) The Additional Commissioner by the impugned order allowed the appeal of Respondent No. 1 against the order dated 28 -9 -1962 passed by Shri D.S. Mathur, reviewing the order of his predecessor dated 28 -4 -1961 and restoring the order dated 28 -4 -1961 and the Board of Revenue by the impugned order held that the Additional Commissioner took a correct view in the matter and refused to interfere in revision.
(3.) The facts of the case may briefly be stated thus: One Mohd. Hanif Gul Khan took some loan in the year 1924 from Mata Prasad and mortgaged his whole share of village Gulhara Mohat Abdul Jhakaur Khan, Tehsil Moth, district Jhansi. Mata Prasad on the basis of the mortgage brought a suit in 1936 in the court of Sub -Judge, Jhansi and obtained a decree on 1 -8 -1936 against the mortgagor. Mohd. Hanif Gul Khan, as it appears, filed an application Under Sec. 4 of the UP Encumbered Estates Act and the only creditor arrayed in the application was Mata Prasad. After due completion of the formalities, the Collector sent the application to the Special Judge, Jhansi and after completion of the proceedings before that court the decree passed by the Special Judge was transmitted to the Collector, Jhansi, for liquidation or the debt out of the properties reported by the Judge. From the averments in the counter -affidavit it appears that the liquidation proceedings before the Collector could not proceed as they were stayed under the orders of the Board of Revenue till 1954 whereafter some amendments were made in the UP Encumbered Estates Act. During the course of these proceedings against Mohammad Hanif Gul Khan under the aforesaid Act, sometimes in the year 1947 his sons and daughters migrated to Pakistan. Mohammad Hanif Gul Khan remained an Indian national and his property which included proprietary rights in land was being proceeded against for the liquidation of his debts under the UP Encumbered Estates Act. Sometimes in the year 1949 Mohammad Hanif Gul Khan died and his heirs were brought on the record of the proceedings. From the facts as available on this record it is not clear when they were brought on the record. Whether they were brought on the record after the transmission of the decrees to the Collector or before that date. However, it may safely be presumed that the proceedings for the amendment of the decree or for bringing the heirs on record prior to the passing of decree must have been taken before the Special Judge. The liquidation of the debt out of the property reported by the Special Judge continued. The claim of the Petitioner is that after the death of Mohammad Hanif Gul Khan his heirs obtained the property by operation of law being heirs to the deceased and since they were evacuee the property vested in the Custodian under the ordinance and thereafter under the provisions of Sec. 4 of the Evacuee Property Act (Act No. XXXI of 1950). In the year 1952 the proprietary right in land which was the zamindari property was acquired under the UP ZA and LR Act and vested in the State of UP. The claim of the Petitioner is that the compensation and rehabilitation grants which were payable under that Act vested in him as a evacuee property and the Collector could net proceed with the liquidation of debt and utilise those bonds in liquidation thereof under the Encumbered Estates Act. An application was filed before the Sub Divisional Officer, Jhansi, making such a claim and it was prayed that the bonds need not be requisitioned from the Compensation Officer by the Collector and the Petitioner would collect them. As it appears from the averments in the writ petition and the counter affidavit the SDO was not certain about the legal position but ultimately he ordered after reviewing his previous order dated 28 -4 -1961 that he is not compete to pass orders of attachment on the application of Mata Prasad and refused to requisition the bonds. This order was passed on 29th of September, 1962, which is Annexure 3 to the writ petition. Against this order Mata Prasad preferred appeal; to the Commissioner and the Additional Commissioner, who decided the appeal, held (by the impugned order Annexure 4) that the compensation bonds Were held to be moveable property by the Competent Officer and as such were excluded from the term "evacuee property", they should be utilised for the purpose of liquidation of the debt an should be requisitioned for that purpose. He set aside the order and restored the order dated 28 -4 -1961 which was reviewed by the SDO and thus he allowed the appeal. In revision the Board of Revenue concurred with the finding of the Additional Commissioner and dismissed the revision filed by the Petitioner. The Petitioner has thus preferred this writ petition against both the aforesaid orders Annexures 4 and 5 to the writ petition.;