TMI Blog1964 (2) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit under s. 48 of the Administration of Evacuee Property Act, No. XXXI of 1950, (hereinafter referred to as the Act). The appellant contested the matter on the ground that the money had been given to him as a loan and its recovery was barred in January 1949 long before his sister had migrated to Pakistan, and therefore the amount could not be recovered from him. The Assistant Custodian however directed the recovery of the amount as arrears of land revenue under s. 48 of the Act, as it then stood. The matter was taken in appeal before the Custodian, Saurashtra, but the appeal failed. The appellant then went in revision to the Custodian General, and the revision also failed. Then followed a writ petition by the appellant before the Saurashtra High Court in 1955. The writ petition was dismissed by a learned Single Judge; but on Letters Patent Appeal the appellant succeeded, the High Court holding that the amount was not recoverable under s. 48 of the Act as it stood at the relevant time. This decision was given on December 9, 1957. In the meantime, s. 48 had been amended on October 22, 1956 and we shall refer to this amendment in due course. 2. After the appellant had succeeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se or other document or otherwise howsoever, may be recovered in the same manner as an arrear of land revenue. (2) If any question arises whether the sum is payable to the Government or to the Custodian within the meaning of sub-section (1), the Custodian shall, after making such inquiry as he may deem fit, and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question; and the decision of the Custodian shall, subject to any appeal or revision under this Act, be final and shall not be called in question by any court or other authority. (3) For the purpose of this section, a sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act, 1908 (9 of 1908), or any other law for the time being in force relating to limitation of action. It will be seen that this is mainly a procedural section replacing the earlier s. 48 and lays down that sums payable to the Government or to the Custodian can be recovered thereunder as arrears of land revenue. The section also provides that where there is any dispute as to whether any sum is payable or not to the Custodian or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lock, bolt or any door or do any other act necessary for the said purpose. The argument is that the Custodian can only take action for recovery of evacuee property under this section. We are of opinion that the argument is misconceived. Section 9 deals with the recovery of immovable property or specific movable property which can be physically seized; it does not deal with incorporeal evacuee property which may vest in the Custodian and which, for example, may be of the nature of an actionable claim. So far as actionable claims are concerned, they are dealt with by s. 48 as amended read with s. 10(2)(i). It is also a misconception to think that the amount of ₹ 85,000/- which is involved in this case is actually evacuee property. It is true that under s. 48 as amended, the Custodian can take action for recovery of such sums as may be due in respect of any evacuee property and if the sum of ₹ 85,000/- which was deposited with the appellant is actually evacuee property, the Custodian may not be able to take action under s. 48(1) and (2) in respect of the same. But the property which vested in the Custodian was not the actual money in specie lying with the appellant who mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the question that in such cases only the remedy is barred though the right remains. Further as this was a deposit, limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellant's sister for the return of the money before she migrated to Pakistan. Therefore, the period of limitation had not even begun to run on the date the appellant's sister migrated to Pakistan, assuming art. 60 of the Limitation Act, No. 9 of 1908 applied. Consequently the right of the appellant's sister to recover the amounted vested in the Custodian and was not barred by limitation at the time when she became an evacuee. The demand was made for the first time on January 10, 1952 by the Assistant Custodian and time would run from that date, at the earliest. 6. Then it is urged that even if the actionable claim vested in the Custodian, the demand in this case was made for the first time on January 10, 1952, and therefore under art. 60 of the Limitation Act, the right to recover the amount would be barred in January 1955, and consequently no proceeding could be taken under s. 48 to recover the same after January 1955. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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