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Jagarnath Jain And Anr. vs P.C. Bhagat And Anr. on 2 April, 1960

Patna High Court
Jagarnath Jain And Anr. vs P.C. Bhagat And Anr. on 2 April, 1960
Equivalent citations: AIR 1961 Pat 306
Bench: V Ramaswami, R Choudhary


JUDGMENT

1. In these cases the petitioners have obtained a rule from the High Court asking the Opposite Party to show cause why the order of the Subordinate Judge of Hazaribagh, dated the 2nd February, 1957, in Miscellaneous Judicial Cased Nos. 7 and 27 of 1956, should not be set aside by the High Court in exercise of its revisional jurisdiction.

2. It appears that the petitioners had brought separate suits against Messrs. Oriental Ltd. for recovery of different sums of money. The suits were decreed in the Court of the Subordinate Judge of Hazaribagh with interests and costs. In Money Execution Case No. 29 of 1953 the decree-holder

prayed for attachment of Rs. 68,049/- and odd out of the sum of Rs. 69,806/- belonging to the judgment-debtor and at present in the control of the Custodian of Evacuee Properties and in deposit in the Hazaribagh Treasury. In, Money Execution Case No. 4 of 1956 the decree-holder prayed for attachment of a sum of Rs. 11,000/- out of the same amount in deposit in the Hazaribagh. Treasury.

In both these cases the Subordinate Judge, had
issued prohibitory notices under Order 21, Rule 52,
Code of Civil Procedure, but the Deputy Custodian
of Evacuee Properties raised objection to the attachment of the amount. It was contended on his be
half that the amount had vested in the Custodian
under the provisions of the Administration of Evacuee Property Act, 1950, and it was not liable to
attachment under the order of the Court because of
the provisions of Section 17 of that statute. The objection was allowed by the Subordinate Judge who
vacated the order of attachment in both the execution cases.

3. In support of these applications learned
Counsel on behalf of the petitioners contended in
the first place that Messrs, Oriental Ltd. was a limited Company incorporated under the Indian Companies Act, and under the provisions of the Administration of Evacuee Property Act, 1950, a limited
liability Company cannot claim to be an evacuee
and the properties of the limited liability Company
cannot be declared as evacuee properties. In sup
port of this proposition learned Counsel relied upon
the observations of Rajamannar, C. J. in Hooson
Kasam Dada (India) Ltd. v. Custodian of Evacuee
Properly, Madras, AIR 1951 Mad 876 (1). 6n be
half of the opposite party, however, the learned
Government Pleader said that the point was never
raised before the learned Subordinate Judge and it
was never contended before him that Messrs. Oriental
Ltd. was a limited Company and its properties could
not be declared as evacuee properties under the
provisions of the Administration of Evacuee Property Act.

The Government Pleader also referred to a decision of a Full Bench of the Allahabad High Court in Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 740 holding that the properties of a limited Company incorporated under the Indian Companies Act can be declared as evacuee properties in view of the special provisions of the Administration of Evacuee Property Act. We do not, however, wish to express and final opinion on the question of law because it is not clear from the record of the case whether Messrs. Oriental Ltd. was actually incorporated as a limited Company under the provisions of the Indian Companies Act. The learned Government Pleader on behalf of the opposite party submitted that Messrs. Oriental Ltd. was a firm and not a limited Company, and in support of this argument referred to the language of the notification of the Deputy Custodian, dated the 20th May, 1953, published at page 1894 of the Bihar Gazette of the 22nd July, 1953.

It is, therefore, manifest that the question whether Messrs, Oriental Ltd., who was the judgment-debtor in the execution case, was a limited Company or a partnership firm has not been determined

by the executing Court; and since the question was not raised before it, it is not possible for us to permit the petitioners to raise this mixed question of law and fact in this civil revision application for the first time and it is also not possible for us to remand this case to the executing Court for an investigation of the question of fact involved in the submission of learned Counsel for the petitioners. We, therefore, cannot permit Counsel for the petitioners to address this argument in this case.

4. The second point taken on behalf of the petitioners is that the properties notified under the Administration of Evacuee Property Act were sold on the 23rd April, 1951, and the sale proceeds amounting to Rs. 69,806/- were deposited in the Hazaribagh Treasury. It appears from the order of the Subordinate Judge that the properties were in Burgunda at the date of the sale, but after the sale took place the sale proceeds were deposited in the Hazaribagh Treasury. It appears from the order-sheet of the Assistant Custodian that notice was issued in the year 1950, asking Khwaja Manzur Ilahi to show cause why he should not be declared as an intending evacuee. As Khwaja Manzur Ilahi did not appear or show cause he was declared as an intending evacuee and all his properties in Giridih and elsewhere were notified as evacuee properties under the provisions of the Administration of Evacuee Property Ordinance, 1949.

Thereafter inventories of the properties were prepared and action was taken for auction-sale of the properties. It appears that the properties were ac-tually sold on the 23rd April, 1951, and in the course of argument before us the legal validity of the sale has not been challenged on behalf of the petitioners. The main contention of learned Counsel for the petitioners is that the notification dated the 20th May, 1953, has described, the properties notified as properties both movable and immovable of Messrs. Oriental Ltd., Giridih, and the locality of the properties was described as Burgunda, police station Giridih, district Hazaribagh.

The argument put forward on behalf of the petitioners ig that On the date of the notification these properties had already been sold and the sale proceeds were deposited by the Deputy Custodian in the Hazaribagh Treasury. It was submitted that the notification should have mentioned the amount of cash deposited in the Hazaribagh Treasury as the property which was declared as Evacuee Property, and in the absence of such a notification the cash in deposit in the Hazaribagh Treasury did not vest in the Deputy Custodian under the provisions of the Administration of Evacuee Property Act, Reference is made in this connection to Section 7 (3) of the statute and also to Rule 7 and Form 2 prescribed under the rules made under the statute. We do not think there is any substance in this argument.

In our opinion the notification made by the Deputy Custodian, dated the 20th May, 1953, under Section 7 (3), was perfectly legal, and the effect of that notification was that properties described in the schedule to the notification had vested in the Deputy Custodian. It is true that the properties described in that notification had been sold on the 23rd April, 1951, and were not in physical existence on the date of the notification. But the point

is that the properties had been sold and converted into money and the sale proceeds to the extent of Rs. 69,806/- had been deposited in the Hazaribagh Treasury.

It is manifest that the title of the Custodian attaches to the sale proceeds of the properties described in the schedule to the notification dated 20-5-1953. We are, therefore, of the opinion that the Deputy Custodian had valid title to the amount of Rs. 69,806/- deposited in the Hazaribagh Treasury, which represented the sale proceeds of the properties described in the schedule to the notification dated the 20th May, 1953. In our opinion the Subordinate Judge of Hazaribagh has taken the correct legal view in the matter and the argument
of learned Counsel for the petitioners must be rejected on this point.

5. In the result we hold that these applications have no merit and must be dismissed with costs. Hearing fee Rs. 100/- in each case.

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