1. This is a rule obtained by the Custodian against an appellate order passed by Additional District Judge, Prahlad Singh, Bindra dated 24-7-1952 holding that the property was not evacuee property and was therefore liable to attachment and sale in execution of the decree in favour of Kidar Nath.
2. The facts which have given rise to this petition may be stated as follows. Kidar Nath, who is an Advocate, lent money to Mst. Nanhi, a Muslim woman, and filed a suit on 30-10-1947 for the recovery of this amount. He also applied for attachment before judgment on the ground that the woman was going to Pakistan. On 4-11-1941 summons was issued to her, but the report was that she had refused to accept notice, and on 18-11-1947 an 'ex parte' decree was passed.
On 21-11-1947, and it is surprising to note the speed at which the Court seems to have acted in this case, a notice was issued to the woman to show cause why the property should not be sold. The report on the back of this notice was to the effect that Mst. Nanhi had gone away to Pakistan and this report is attested by Kidar Nath. Advocate, and is dated 1-12-1947.
3. On 25-2-1948 the property in dispute was sold, and an application was made on 19-10-1948 by the Custodian under Section 8, Administration of Evacuees Property Act, 1947. This sale was set aside by an order of the executing Court dated 14-10-1949. An appeal was taken to the District Judge who ordered a remand.
4. On the matter going back to the Senior Subordinate Judge, he ordered the sale to be set aside and the decree-holder was directed to return the money which he had received as a result of the sale. The decree-holder went up in appeal to the District Judge who set aside the order, and that is the subject-matter of this revision.
5. The facts which I have given above show quite clearly that Kidar Nath knew that the woman had gone away to Pakistan and therefore the provisions of Section 2(b) and (c), Act of 1947 were attracted. The property thus became evacuee property within the meaning of this clause and under Section 4 it vested in the Custodian. Thus, under Section 8 it was exempt from attachment or sale in execution of the decree-holder's decree.
6. Mr. H.L. Sarin has drawn my attention to a very elaborate judgment of Weston C.J. in --'Custodian Evacuee Property, Punjab v. Gujjar Singh', AIR 1953 Punj 161 (A), where it seems to have been held that determination by the Custodian is a pre-requisite to the attraction of the prohibitory sections, i.e., Section 8 of the Act of 1947 and Section 17 of the Act of 1950. But on the facts as are found in this case I find that the case is distinguishable.
This property, according to the decree-holder, belonged to Mst. Nanhi and Mst. Nanhi had left for Pakistan and therefore within the meaning of Section 2(b) and (c) of the Act of 1947 this property we evacuee property, and under Section 8(2), of the present Act, i.e., the Act of 1950, it becomes evacuee property and becomes screened from attachment and sale under Section 17 of the Act. In cases where a decree-holder himself produces- material which indisputably must lead to the conclusion that the property is evacuee property which would become vested as a result of variousActs in the Custodian, it is not necessary, in my opinion, to go further and look to notifications.
7. And even if the case was governed by the rule laid down in AIR 1953 Punj 161 (A) the decree-holder cannot get any advantage because the matter will still have to be determined by the Custodian as was held by Harnam Singh J. in --'Mohd. Sadiq Barry v. Mohd. Ashfaq, AIR 1954 Punj 87 (B), but in the present case I am unable to agree with the learned Additional District Judge that the property was not evacuee property. The requisite notification under Section 6 of the Act of 1947 does not come into play in this case. I am there- fore of the opinion that the learned Judge was in error and the case comes within 'failure to exercise Jurisdiction vested in him' or 'has acted Illegally or with material irregularity in the exercise of his jurisdiction.'
8. I would therefore allow this petition, set aside the order of the Additional District Judge and restore that of the executing Court. The rule is therefore made absolute with costs.