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Custodian, Evacuee Property, Jullundur and ors. Vs. Firm Dharam Paul Asu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 258 of 1955
Judge
Reported inAIR1960P& H354
ActsAdministration of Evacuee Property Act - Sections 4, 13 and 30; Code of Civil Procedure (CPC), 1908 - Sections 51 and Order 40
AppellantCustodian, Evacuee Property, Jullundur and ors.
RespondentFirm Dharam Paul Asu Ram and ors.
Cases ReferredThe Custodian Evacuee Property v. Simla Banking and Industrial Co.
Excerpt:
.....was dismissed for his failure to do so. his subsequent objection petition is clearly barred by time, and further it cannot be entertained on the ground that the matter has already been disposed of. the objections of the custodian were rightly dismissed by the learned district judge and this appeal must fail......of some importance. the matter relates to the interpretation of s. 17(2) of the administration of evacuee property ordinance (ordinance no. xxvii of 1949) which is in the following terms:'save as otherwise expressly provided in this ordinance, any attachment or injunction subsisting on the commencement of this ordinance in respect of any evacuee property which has vested in the custodian shall cease to have effect on such commencement, and any transfer of evacuee property under orders of a court or any other authority made after the 14th day of august, 1947, shall be set aside, if an application is made to such court or authority by or at the instance of the custodian within three months from the commencement of this ordinance.'(2) the matter arose in the following way: in january 1948.....
Judgment:

Khosla, C.J.

(1) This matter arising out of an order made in execution proceedings came up in the first instance before Bishan Narain J. who has referred it to a larger Bench for the reason that the point is frequently occurring and is of some importance. The matter relates to the interpretation of S. 17(2) of the Administration of Evacuee Property Ordinance (Ordinance No. XXVII of 1949) which is in the following terms:

'Save as otherwise expressly provided in this Ordinance, any attachment or injunction subsisting on the commencement of this Ordinance in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement, and any transfer of evacuee property under orders of a Court or any other authority made after the 14th day of August, 1947, shall be set aside, if an application is made to such Court or authority by or at the instance of the Custodian within three months from the commencement of this Ordinance.'

(2) The matter arose in the following way: In January 1948 the firm Dharam Pal Assu Ram instituted a suit against Bashir Ahmad and Walli Mohd. for the recovery of a sum of money. This suit was decreed on 21-4-1948, and shortly afterwards the house of the judgment-debtors was put up to sale in execution proceedings and sale for Rs. 1,850/-. The house was bought by Ganpat Mal and Harbans Lal who is the minor son of the decree-holder Assu Ram. The Custodian, on coming to know of this sale, now stepped in and filed objections under O. 21, R. 58, C.P.C., and also under the evacuee law claiming that the sale was void and liable to be set aside. These objections were filed by him on 17-7-1948, and a few days later, they were dismissed and the sale was confirmed on the ground that the auction-purchaser had not been made a party by the Custodian. The Custodian filed an appeal, and the District Judge dismissed it on 29-4-1949. A second appeal brought to this Court met the same fate on 15-3-1951.

The Custodian had, in the meantime, put in another objection petition on 27-10-1948 under S. 8(2) of Act XIV of 1947. On this occasion, too, he did not make, the auction-purchaser a party, and on this ground his objections were dismissed on 11-5-1949. Then on 10-8-1949 the Custodian filed a third application under S. 15 (2) of the East Punjab Evacuee Property (Administration) Ordinance (Ordinance No. IX of 1949). A fourth application was filed on 6-1-1950 under section 17(2) of Ordinance No. XXVII of 1949. The third and the fourth objection petitions were heard together, and on 7-6-1954 the executing Court allowed these objections and set aside the sale. The District Judge on appeal reversed the decision and dismissed the Custodian's objections. It is against this order of the District Judge that the present appeal has been brought to this Court by the Custodian, and it has been urged on his behalf that the sale is liable to be set aside under the provisions of S. 17 (2) quoted above.

(3) As against this, it has been urged that the objections of the Custodian are barred by the principle of res judicata and also on the ground of limitation. It has been urged on behalf of the respondents that on two previous occasions the Custodian raised exactly similar objections and they were dismissed; he cannot now raise the same objections on the same grounds. It is further contended that the Custodian failed to make the auction-purchaser a party and he cannot now, after the lapse of the prescribed statutory period, raise similar objections.

(4) On behalf of the Custodian it is argued that S. 17 (2) makes no reference whatsoever to any period of limitation; all that it requires is that (1) the order of sale must have been made after the 14th of August 1947 and (2) the application by the Custodian to have the sale set aside must be made within three months of the commencement of the Ordinance (Ordinance No. XXVII of 1949). Both these conditions are fulfilled, because (a) the sale was made on 16-6-1947 and (b) the objections were made by the Custodian on 6-1-1950 within three months of the date of promulgation of the Ordinance which is 18-10-1949. Mr. Chawla has contended before us that the principle of res judicata does not apply to these proceedings and, therefore, the dismissal of the previous applications does not preclude the entertainment of the present objections. Reliance was placed upon a Division Bench decision of this Court in The Custodian Evacuee Property v. Simla Banking and Industrial Co., AIR 1951 Punj 434, in which it was held that the provisions of S. 51 and O. 40, C.P.C., are not consistent with Ss. 13 and 30, Administration of Evacuee Property Act, for the two laws cannot operate at the same time. The learned Judges took the view that the Administration of Evacuee Property Act was to have preference wherever it came in conflict with other laws because of the provisions of S. 4 of the Administration of Evacuee Property Act. Section 4 of the Administration of Evacuee Property Act is similar to S. 4 of the Ordinance which is in the following terms:

'The provisions of this Ordinance and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.'

(5) Therefore, the argument of Mr. Chawla, reduces itself to this that because of S. 4 the principle of res judicata cannot be applied, nor can the law with regard to limitation have any effect on the provisions of S. 17.

(6) This, however, does not appear to have been the intention of the legislature. Section 4 was merely intended to deal with to se matters upon which a distinct conflict between the evacuee law and the ordinary law of the land was anticipated. It could not have been intended to give the Custodian a right to reagitate the matter over and over again after it had been decided against him. The principle of res judicata is a rule of justice and applies to execution proceedings. In the present case the Custodian filed objections and these objections were dismissed. The matter went up to the highest Court in the State and was decided against him. A second objection petition met the same fate.

The Custodian cannot now say that because S. 17 gives him the right to apply, within three months of the promulgation of the Ordinance, for setting aside the sale, he an set at naught all that happened before. In my view S. 17(2) is intended to deal with fresh cases and not to revive old disputes which have been settled and disposed of. We may even apply the principle of O. 2, R. 2, C.P.C., to these proceedings. It was open to the Custodian to impaled the auction-purchaser. His first petition was dismissed for his failure to do so. Even in the second petition he did not impaled the auction-purchaser. His subsequent objection petition is clearly barred by time, and further it cannot be entertained on the ground that the matter has already been disposed of.

(7) In this view of the matter, I do not find any conflict between S. 17(2) on the one hand and the law of limitation and the principle of res judicata on the other. The provisions of S. 4, therefor, do not come into play and it cannot be argued that S. 17 abrogates the law of limitation in execution proceedings or that it abrogates the principle of res judicata. The objections of the Custodian were rightly dismissed by the learned District Judge and this appeal must fail. I would accordingly dismiss it with costs.

Tek Chand, J.

(8) I agree.

(9) Appeal dismissed.


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