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The Asstt. Custodian, Evacuee Property and anr. Vs. Virendra Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1128 of 1958
Judge
Reported inAIR1965All70
ActsAdministration of Evacuee Property Act, 1950; Administration of Evacuee Property (Amendment) Act, 1956 - Sections 10(2), 17 and 50; Administration of Evacuee Property Rules, 1950 - Rule 22; Code of Civil Procedure (CPC) - Order 21, Rule 131
AppellantThe Asstt. Custodian, Evacuee Property and anr.
RespondentVirendra Kumar and ors.
Appellant AdvocateN.D. Pant, Adv.
Respondent AdvocateK.G. Agarwala, Adv.
DispositionRevision application allowed
Excerpt:
property - right of custodian of evacuee property - section 17 of administration of evacuee property act, 1951 - property vested in the custodian cannot be proceeded against unless expressly provided under the act - where no amount was ever attached but only claim registered under rule 22 of the act was pending - held, no vested rights at all accrued in favour of decree holder - order of civil court to deposit the sale proceeds of evacuee property against which claim is registered would be illegal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions..........prop. ii, dated 2nd july, 1956, of the governmentof india. it was only thereafter that the evacueeproperty, sometime late in july came to be sold by the custodian.3. 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.4. 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.....
Judgment:

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 Rule 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 Rule 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 Rule 22, 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 Governmentof India. It was only thereafter that the evacueeproperty, sometime late in July came to be sold by the Custodian.

3. 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.

4. 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 Order 21 Rule 131, of C. P. C. to deposit the sale proceeds of the evacuee 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.

5. A reading of the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act) and the amendment made thereto, leave no room for doubt that the order of the learned Civil Judge was wholly without jurisdiction. Section 4, provides that if any other law is inconsistent with the provisions of this Act then the latter will prevail. All evacuee property, by virtue of Section 8, vested in the Custodian. The powers and duties of the Custodian are set out in Section 10. The relevant portion on which the applicant decree-holder relied on was Sub-clause (m) of Section 10(2) of the Act; this reads:

'Section 10(2)(m): incur any expenditure, including the payment of taxes, duties, cesses and rates of Government or to any local authority (or of any amounts due to any employee of the evacuee or of any debt due by the evacuee to any person'

6. The last portion of Sub-section (m) was deleted by Act 91 of 1956. Therefore, the authority given to the Custodian to make payments towards any debt due by evacuee was taken away. Rule 22 of the rules, which provide for claims to be registered by third parties, who claim the right to receive any payment from the property of any evacuee or from the property of such evacuee was also deleted when Act 91 of 1956, took away the powers of the Custodian to make any payment of debts due by the evacuee to any person. The claim, therefore, that was registered by Shanti Saran in respect of his decree against Hasmat Khan and Shaukat Hussain, evacuee was rendered ineffective after the passing of Act 91 of 1956.

7. In any event Clause (8) of Rule 22, even if that rule was applicable had specifically provided:

'The mere registration of a claim shall not entitle the claimant to payment and the Custodian may for reasons to be recorded refuse payment'

Therefore, assuming that the claim, which was registered with the Custodian was still valid and subsisting, it would not have given Shanti Saran a right to claim any payment and much less Virendra Kumar his creditor. It is always in the discretion of the Custodian to refuse payment after recording his reasons.

8. Section 17 of the Act exempts all evacuee properties from any process of Civil Court. This section reads:

Section 17. 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 provisions of this 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 other 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 the Administration of Evacuee Property (Amendment) Act, 1951, shall cease to have effect on such commencement and shall be deemed to be void. The provisions of this section make it abundantly clear that once a property vests in the Custodian it cannot be proceeded against in any manner unless expressly provided in the Act itself. Section 16, totally bars the jurisdiction of civil courts in respect of certain matters set out therein.

9. Section 50, further provides for a notice of suits to the Custodian in all civil or revenue cases where a question relating to the property ofevacuee is involved.

10. This provision appears to have been invoked in suit No. 70 of 1950 when notice was given to the Custodian. The effort to be given to such notice, however, is not as has been held by the Civil Judge to make the Custodian a legal representative of the evacuee in a suit filed against him but only to keep him, so to speak in the picture. He does not become a party to those proceedings nor is he bound by the decision so given in the suit against the evacuee. It has been laid down in Angoori Devi v. Custodian Evacuee Property Salt Office (Agra), 1962 All LJ 8 though in a different context, that the position of a Custodian is unique in the sense that the property of the evacuee is vested in him and he is to administer the same as provided in the Act.

11. In Haseena Begum v. Assistant Custodian Evacuee Properties Muzaffarnagar, 1962 All LJ 308 it has been laid down that Section 17 of the Administration of Evacuee Property Act (No. XXXI of 1950) provides an absolute bar to the decree-holder's proceeding in execution against any property which was vested in or was deemed to be vested in the Custodian under the provisions of the Act. As the Section stands the fact that the Custodian was himself a party to the decree and the decree had been passed against him also was immaterial. There fore, even if the Custodian was made a party to suit No. 70 of 1950 he did not in fact become the legal representative of the evacuee and the evacuee property which had vested in the Custodian could not have been attached as Section 17 of the Act completely barred any proceedings against such property.

The learned Civil Judge was clearly in error in assuming jurisdiction in directing the Custodian to remit Rs. 9860/-. He was also in error in thinking that a specific amount had been agreed to be attached by the custodian and even if the Custodian had agreed to attach the claim or a specific amount he could not have given effect to such agreement as he had no jurisdiction to do so, particularly, after the amendment of Section 10(2)(m) by Act 91 of 1956, which had completely taken away the right of the Custodian to make any payment to the decree-holder of an evacuee. No amount was ever attached and all that was pending before the Custodian was only a claim registered under Rule 22 of the rules. No vested right had at all accrued in favour of the decree-holder, which is clear from the fact that the Custodian was never obliged to discharge the debts due to third parties from an evacuee and if there was no such obligation it must necessarily follow that no vested rights were or could have been acquired by the decree-holder. The view that I am taking finds support from a decision of Punjab High Court in B. M. Bhalla v. Union of India, AIR 1960 Punj 387.

12. For the reasons given above the order ofthe Civil Judge is set aside and the revision isallowed but, in the circumstances of the case therewill be no order as to costs.


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