MANCHANDA, J. - (1.) THIS is an application in revision by the Custodian, Evacuee Property, directed against an order of the Civil Judge, Meerut dated 23rd August, 1958, requiring the Custodian, Evacuee Property to remit the sum of Rs. 9430/- for payment to Virendra Kumar, opposite-party decree holder, in execution of his decree against Shanti Saran. The latter had filed a claim under R. 22 of the Administration of Evacuee Property (Central Rules 1950) hereinafter referred to as the Rules, in respect of his decree for Rs. 5983/10/- against Hashmat Ali and Shaukat Hussain, since declared evacuees.
(2.) THE facts leading up to this revision are these : Opposite-Party Virendra Kumar had filed suit No. 70 of 1955 against Shanti Saran. During the pendency of this suit, Virendra Kumar applied to the court for attachment before judgment of a claim which Shanti Saran had registered under R. 22 of the Rules, in respect of the decree for Rs. 5983/10/- obtained by him in suit No. 70 of 1955 against the said Hashmat and Shaukat, evacuees, whose property vested in the custodian. A requisition was issued by the Civil Judge asking the Custodian to attach the said claim. The Custodian replied by his letter dated the 11th of January 1956, that the claim of Shanti Saran which was registered as claim No. 89 under R. 23, will remain attached. Subsequently, after Virendra Kumar had obtained a decree for Rs. 15,219/6/- against Shanti Saran, he in execution of his decree in Execution Case No. 53 of 1957 applied for attachment of the said claim registered at No. 89, The Custodian by his letter dated 2nd of April, 1958, however, informed the court that the claim of the said Shanti Saran had been registered in his office as a third party claim and it being based on an unsecured debt, it was not payable in view of the circular and standing statutory rules and O. XXXIV-1(13)/55 Prop. II, dated 2nd July, 1956, of the Government of India. It was only thereafter that the evacuee property, sometime late in July came to be sold by the Custodian. Virendra Kumar, decree-holder, thereupon, in the course of the execution proceedings filed an application, supported by an affidavit, in which he mentioned the sale of the evacuee property for Rs. 9860/- and prayed that the Custodian be required to deposit the said amount in court.
(3.) THE Custodian resisted this requisition on various grounds but, the Civil Judge overruled his objections mainly, on the ground that in Suit No. 70 of 1950, which was a suit filed by Shanti Saran against Hashmat Khan and another, the Custodian was made a party to the decree and being a party to the decree he was bound thereby and in pursuance of that decree to recover the decretal amount. It was further observed that if the Deputy Custodian thought that the decree against him was not correct he could have appealed against the decree but, he not having preferred any appeal against the decree, which had now become final was bound by it. It was further held, that the Deputy Custodian was in the position of a garnishee and, therefore, he could have been directed, under O. 21 R. 131, of C.P.C. to deposit the sale proceeds of the edcuee property of Hashmat Khan and Shaukat Hussain in court. In this view of the matter the Civil Judge directed the Custodian to send the sum of Rs. 9430/3/- for payment to the decree-holder in compliance with the order issued by him. This revision by the Custodian is directed against the said order.;