MANCHARSHAWH WADIA OF PROBANDER Vs. DEPUTY CUSTODIAN GENERAL OF INDIA

JUDGEMENT

(1.) This order will dispose of two petitions under Article 226 of the Constitution which were filed together by the same petitioner and in which rule nisi was also issued on the same day. Civil Writ No. 254-D of 1960 is directed against an order dated 28th November, 1959 made by the Deputy Custodian General of Evacuee Property India who is the only respondent impleaded therein, while Civil Writ No. 255-D of 1960 challenges the validity of the order dated 15-3-1956 made by the Appellate officer under the Evacuee Interest (Separation, Act, 64 of 195/ The second respondent impleaded in that petition is the Assistant Custodian of Evacuee Property, Porbunder.

(2.) In order to appreciate the controversy arising in both these petitions which have a common object in view, it is necessary to set out the salient facts about which there is no dispute. One Haji Ayub Khadbhai of Porbunder had three sons namely, Omar, Ahmed and Aboobakar. The last name two sons had business dealings with the petitioner as a result of which the petitioner claimed a sum of Rs. 76,416/6 to be due to him. The petitioner and his debtors agreed to have their alleged dispute settled by arbitration. On 27-6-1949 the arbitrator made an award in favour of the petitioner for the amount claimed by him with interest at the rate of 6/o per annum and a further direction that four immovable properties belonging to the debtors would stand mortgaged with the petitioner for the payment of the amount due to him. The award was filed in the court of Assistant Judge, Porbunder and was made a rule of the court by a decree being passed in accordance therewith on the following day i.e. 28-6-1949.

(3.) The debtors paid Rs. 55,404/15/9 towards satisfaction of the mortgage debt leaving a sum of Rs. 21011/6/9 to be still outstanding against them.