(1) This writ petition is under Art. 226 of the Constitution of India praying for a direction to the Custodian to discharge a decree obtained by Mr. B. M. Bhalla against Nawab Ehsan Ali Khan.
(2) On 26-10-1948, Mr. Bhalla obtained a decree for Rs. 38,000/- against the Nawab. Thereafter he moved the Custodian for the registration of his claim under rule 22 of the Administration of Evacuee Property (Central) Rules, 1950. On 26-7-1949, this claim was registered in accordance with rule 22 read with S. 10(2)(m) of the Administration of Evacuee Property Act (No. XXXI of 1950) before its amendment in 1956. Section 10(2)(m) as it originally stood and Rule 22 are in these terms:
'Section 10(2)(m): incur any expenditure, including the payment of taxes, duties, cesses and rates to Government or to any local authority; or of any amounts due to any employee of the evacuee of any debt due by the evacuee to any person'
Rule 22. (1) Any person claiming the right to receive any payment from any evacuee or from the property of such evacuee, whether in re-payment of any loan advanced or otherwise, may present petition to the Custodian for registration of his claim. Such application shall be signed and verified by the claimant in the same manner as a plaint is required to be signed and verified under the Code of Civil Procedure, 1908.
Explanation: An application under this sub-rule shall lie in respect of a claim for refund of money paid as consideration for the transfer by an evacuee of any property where such transfer is not confirmed by the Custodian under S. 40 of the Act.
(2)(a) Where a claim made under sub-rule (1) is supported by-
(i) a decree of a competent Court; or
(ii) a registered deed executed and registered before 14-8-1947, or
(iii) a registered deed executed and registered on or after 14-8-1947, and the transaction in respect of which the deed was so executed and registered has been confirmed by the Custodian; or
(iv) an acknowledgement in writing executed by the evacuee himself before the 1st March, 1947;
(b) Where such claim is of the nature referred to in the 'Explanation' to sub-rule (1) and the Custodian holds that the transfer of the property in respect of which the claim is made was a bona fide transaction the Custodian may register the claim or such part thereof as has not been satisfied.
Provided that in the case of a claim of the nature referred to in the explanation to sub-rule (1), the claim shall be registered only for that amount of money which is proved to have been paid as consideration for the transfer of the property.
(2A) In any case which does not fall under sub-rule (2), the Custodian shall direct the claimant to establish his claim in a civil Court.
(3) The mere registration of a claim shall not entitle the claimant to payment and the Custodian may for reasons to be recorded refuse payment.
(4) No debt incurred by the evacuee before the property vested in the Custodian shall be paid without the sanction of the Central Government or Custodian General.
Explanation; Nothing in this rule shall debar the Custodian from meeting the day to day expenses incurred in the management of evacuee property and such expenses may be paid without sanction. Sanction of the Central Government or the Custodian General is also not required to the discharge by the Custodian of the legitimate obligations and liabilities incurred in the ordinary course of business of a trading concern carried on by the Custodian whether such liabilities and obligations are incurred before or after the vesting of the business in the Custodian.'
Later on by Evacuee Property Amendment Act (No. 91 of 1956) from section 10(2)(m) the words 'or of any amounts due to any employee of the evacuee or of any debt due by the evacuee to any person' were deleted and in consequence by S. R. O. No. 667 dated 20-2-1957, rule 22 was also deleted. This has led to the present petition by the decree-holder.
(3) The contention of Mr. Thapar, the learned counsel for the petitioner, is that he had a vested right in the debt after registration and the Department was bound to discharge the same and that the deletion of rule 22 or the amendment in S. 10(2)(m) have no effect so far his case is concerned. I am unable to agree with this contention. Neither S. 10(2)(m) nor rule 22 made it obligatory on the Department to discharge the debts due from an evacuee. As a matter of fact rule 22(3) clearly says so. It is not doubt true that the decree cannot be executed for Section 17 of the Act clearly prohibited the execution of decrees against the evacuee property. Mr. Thapar half heatedly sought to raise a contention that S. 17 and the provisions of the Amending Act 19 of 1956 deleting part of S. 10(2)(m) and in consequence rule 22, are ultra vires the Constitution of India. This point has not been raised by him in the petition and consequently it cannot now be allowed to be agitated at this stage. Moreover the learned counsel was also not sure of his ground even on this fact of the case.
(4) In passing I may observe that this is a fit case where the Department having taken over the property of the evacuee should have made some provision for the payment of the debts due by the evacuee particularly where the decree was obtained after contest, but this is a matter entirely for the Department to decide.
(5) For the reasons given above, this petition fails and is dismissed, but there will be no order as to costs.
(6) Petition dismissed.