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Kishan Chand Vs. Assistant Custodian Evacuee Property and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Petn. No. 409 of 1951
Judge
Reported inAIR1952P& H305
ActsAdministration of Evacuee Property Act, 1950 - Sections 17(2)
AppellantKishan Chand
RespondentAssistant Custodian Evacuee Property and anr.
Appellant Advocate S.L. Puri, Adv.
Respondent Advocate H.R. Sachdev, Adv.
DispositionApplication allowed
Excerpt:
.....information about it. as i have indicated, the powers of the custodian under section 17(2) must be restricted strictly to those conferred by the section, and any application to set aside a sale must be an application clearly referable to a particular and specific sale......attached. the dates of the execution application and the order of attachment do not appear. the date of sale appears from the sale certificate to have been the 15th of june 1948. this sale was confirmed by sundar lal, subordinate judge first class, on the 24th of july 1948. on the 23rd of october 1950, an application was made by the assistant custodian of evacuee property under section 17(2) of the administration of evacuee property act, act xxxi of 1950, asking that the sale should be set aside as being a sale of evacuee property. under the act the latest date for such application is the 17th of october 1950, namely the last day within six months from the commencement of the act. it was stated in the application, however, that the courts were closed on account of holidays on dates.....
Judgment:
ORDER

Weston, C.J.

1. On the 6th of February 1947, one Manohar Lal Roshan Lal obtained a money decree for an amount of Rs. 1,160/- and costs against one Abdulla Habibullah in the Court of a Subordinate Judge at Amritsar. In execution of this decree a shop belonging to the judgment-debtor was attached. The dates of the execution application and the order of attachment do not appear. The date of sale appears from the sale certificate to have been the 15th of June 1948. This sale was confirmed by Sundar Lal, Subordinate Judge first class, on the 24th of July 1948.

On the 23rd of October 1950, an application was made by the Assistant Custodian of Evacuee Property under Section 17(2) of the Administration of Evacuee Property Act, Act XXXI of 1950, asking that the sale should be set aside as being a sale of evacuee property. Under the Act the latest date for such application is the 17th of October 1950, namely the last day within six months from the commencement of the Act. It was stated in the application, however, that the Courts were closed on account of holidays on dates intervening between the 17th of October and the 23rd of October 1950, and no dispute on this point has arisen. In the application the following facts relating to the sale sought to be set aside were stated.

2. The name of the Judgment-creditor in execution of whose decree the sale was held was given as Mohan Lal Roshan Lal and not Manohar Lal Roshan Lal. The number of the suit in which the decree was passed was not stated. The Court was stated to be that of Mr. Sundar Lal, Sub Judge. The name of the purchaser at the Court auction was not given. What was said was that the auction-purchaser was 'according to file'. The amount at which the property was purchased was given as Rs. 4150/- which was the amount for which the shop was purchased by the present applicant, The property was described not as a shop but as 'a house at Amritsar' without further particulars. The decree in which the property was said to be sold was said to be a decree for Rs. 776/- but the date of the decree was given as the 6th of February 1947 which was the date of the decree obtained by Manohar Lal Roshan Lal. The date of the sale was given as the 30th of May 1948 whereas the actual date of the sale of the shop purchased by the applicant was the 15th of June 1948.

3. Following this application, there were several adjournments to enable the Assistant Custodian to give particulars of the file. On the 21st of December 1950, the name of thepresent applicant was given and he appeared on the 23rd of February 1951 and filed a written statement stating that he had bought no house in execution of a decree of one Mohan Lal, but he gave full details of the purchase of the shop which had been made by him, and he also said that after obtaining possession he had reconstructed the dilapidated premises at a cost to himself of Rs. 4,000/- odd. On the 27th of February 1951, the Assistant Custodian made an application to amend his original application.

In this amendment application he said that by a clerical mistake the decree-holder had wrongly been shown as Mohan Lal-Roshan Lal instead of Manohar Lal-Roshan Lal, and he also said that the auction-purchaser had not been shown as he was not known, and the application was filed on the last day of limitation. In the application nothing was said about the identity of the property. On the 4th of March 1951, the present applicant filed objections, the substance of which was that no amendment should be allowed which would have the effect of admitting an application under Section 17 of Act XXXI of 1950 after the period prescribed for filing of such applications had expired.

4. The trial Court has allowed the amendment stating that the main consideration to be borne in mind is that rules of procedure are to facilitate the task of justice and the multiplicity of proceedings should be avoided. The learned judge has not directed his mind to consideration of the one important fact, namely whether by allowing the amendment, in effect an application under Section 17 of Act XXXI of 1950 has been allowed to be presented after the period prescribed for such applications. Quite obviously, if the effect of allowing the amendment is this, the amendment should not be allowed. The extraordinary power given to the Custodian under Section 17(2) to require that sales should be set aside on his command must be restricted to the limits provided by that section. No application filed after the time prescribed by the section could possibly be allowed on any plea of ignorance, mistake or other cause.

The question in the present case reduces to this: whether the application which was filed on the last permissible date was an application which can be related to the auction sale at which the present applicant was the purchaser. I do not think it can be so related. The property described in the application is particularised only as being a house at Amritsar. The property purchased by the present applicant was not a house but a shop. The date of the sale is not the date at which the present applicant purchased the shop. The name of the decree-holder in execution of whose decree the property was sold is not correctly described. The amount for which that decree was passed is not the amount of the decree, in execution of which the applicant purchased the shop. The coincidence of the name of the Subordinate Judge, the date of the sale and the amount for which property was purchased being the same. In my opinion is not enough to justify identification of the sale sought to be set aside as the sale by which the applicant obtained the property.

It may well be that the Assistant Custodian en the last day of limitation had some vague I information about the sale but had not been able to acquire full information about it. But unless the Custodian was able on that date to fix with reasonable certainty identity of the property, the sale of which he sought to be set aside, his application could be of no avail. Quite obviously, it was not open to the Assistant Custodian on the last day of limitation to file in the Courts an omnibus application or a number of separate applications to the effect that some sales later to be particularised were sought to be set aside. As I have indicated, the powers of the Custodian under Section 17(2) must be restricted strictly to those conferred by the section, and any application to set aside a sale must be an application clearly referable to a particular and specific sale.

5. In the circumstances I think the presentapplication must be allowed and the amendment application rejected and in the result,as the original application does not refer tothe shop purchased by the present applicantand is not shown to refer to any other property,that application also must be ordered to be rejected. The parties may, I think, bear their owncosts throughout.


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