1. These are several appeals (Regular First Appeals Nos. 120 to 128 of 1950, and Regular First Appeals Nos. 156 to 165 of 1948) filed by the Punjab & Sind Bank Limited for modification of the decrees passed by the trial Judge in civil suits where instead of passing mortgage decrees under order XXXIV the trial Court only passed personal money decrees against the defendants.
2. The civil suits were filed on the 3rd December 1947 against Mohammadan defendants on the basis of equitable mortgages. As the defendants had gone away, the Custodian was impleaded and a plea was taken by the Custodian that the suits were barred under Section 8 of the Act XIV of 1947, and he also pleaded ignorance of the mortgages. Three issues were raised by the defendants and they were (1) Did the defendants, other than the Custodian, mortgage the property in dispute in the different suits with the plaintiff? When and on what conditions? (2) Is Section 8 of Act XIV of 1947 a bar to a decree for sale being passed? (3) Are the suits within time? The Subordinate Judge held that the mortgages were proved, that a mortgage decree under Order XXXIV could not be passed but only a simple money decree could be passed and therefore he passed simple money decrees against the defendants. The Bank has come up in appeal to this Court and prays for mortgage decrees to be passed in the various suits.
3. The original Act was the East Punjab Evacuees' (Administration of Property) Act of 1947 which came into force on the 13th December 1947. Section 8 in that Act was as follows:
'All property of which the Custodian has taken possession under Section 6 shall be exempt from attachment, distress or sale in execution of a decree of a Court or an order of any other authority.'
Section 17 under that Act was as follows:-
'Except as provided in this Act no order made in exercise of any power conferred by this Act 'shall be called into question in any Court.'
4. On the 30th July 1948 there was an amendment of this Act and these sections after the amendment were as follows :-
'8(1) All property which vests in the Custodian shall be exempt from attachment, distress or sale in execution of the decree of a Civil or Revenue Court or in pursuance of the order of any other authority.'
It is not necessary to give the second sub-section of this Act. To Section 17 a second sub-section was added, the relevant portion of which was as follows:-
'17(2) In particular and without prejudice to the generality of the foregoing provisions, no civil Court shall (i) entertain any suit for declaration or for any other relief with regard to evacuee property or with regard to any order of cancellation, termination or modification of a lease or to any order demanding surrender of possession,'
The Act of 1947 was repealed and in 1950 a Parliamentary Act came into force where the exclusion of the jurisdiction of Civil Courts was confined to matters given in Section 46 which is as follows:-
'46. Save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction.
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(b) to entertain or adjudicate upon any question whether any person is or is not an intending evacuee; or
(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act or
(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine.'
5. Counsel for the appellants submits that tinder the Code of Civil Procedure he had the right to get a decree under Order XXXIV, Rules 4 and 5 and that under the Parliamentary Act which repeals the previous Acts and which must be taken into account, there is no bar to his getting a mortgage decree as provided for in the Code. In my opinion there is substance in the submission of counsel for the appellants Section 8 of the Act of 1947, as it stood before the amendment, did not prevent the passing of a mortgage decree whether preliminary or final, and Section 17 as it stood on the date of the suit also did not prevent the entertainment of any such suit. No doubt in the amended Section 17 there is a provision which interferes with the jurisdiction of the Civil Court to entertain certain kind of suits, but under Section 46 of the Parliamentary Act no such provision exists, and even under the old Act it is very doubtful that the right to get a mortgage decree was taken away. In any case we have to take into account Section 46 of the Parliamentary Act which does not prohibit the passing of any mortgage decree.
6. In my opinion these appeals must succeed and a preliminary decree for sale under Order XXXIV Rule 4 of the Civil P. C. must be passed. In the result the appeals are allowed and in place of the simple money decrees mortgage decrees under Order XXXIV shall be passed.
7. The appellant shall have his costs in this Court and in the Court below.
8. I agree.