TMI Blog1985 (5) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to get possession of the Ice Factory on the basis of the agreement to sell executed in his favour instituted a suit in forma pauperis on October 1, 1947 in Suit No. 3 of 1947 on the file of the Senior Sub-Judge at Delhi for specific performance of the agreement to sell and inter alia prayed for a decree for a sum of ₹ 85,000 which was the balance of the consideration payable under the agreement to sell referred to above and for ₹ 5,000 as compensation for the loss caused by Saghir Ahmed in not completing the transaction of sale in time. They stated that on his paying the balance of consideration, a sale deed may be obtained from them by Saghir Ahmed. Saghir Ahmed remained ex parte and the suit was heard in his absence. On November 20, 1947 a decree was passed in the suit by the Sub-Judge, 1st Class, Delhi against Saghir Ahmed, directing him to pay to Sardar Mela Singh and Sardar Hari Singh, the plaintiffs in the suit, a sum of ₹ 86,000 along with costs of ₹ 2967/8/. Saghir Ahmed was given liberty to apply to the court to get a regular sale deed executed by the plaintiffs. It may be stated here that during the pendency of the suit the interest of Sarda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned date shall be liable to be set aside at the instance of the Custodian on an application filed before the Court, officer or authority which ordered the sale, lease or alienation, as the case may be, within three months of the coming into force of East Punjab Evacuees (Administration of Property) (Second Amendment) Ordinance, 1948, or the date of the sale, lease or alienation whichever is later. 2. After the said amendment, the Custodian of the Evacuee Property made another application on December 11, 1948 before the learned Sub-Judge claiming that the sale of the properties by the court was ineffective since the sale had taken place after December 31, 1947. That application was rejected by the learned Sub-Judge holding that the said provision did not affect the court sales of properties which had been attached prior to December 31, 1947 and that in the instant case the properties that had been sold had been attached on October 9, 1947. The said order of the learned Sub-Judge was passed on March 28, 1949 and it became final. 3. Thereafter on June 13, 1949 the Governor-General of India passed an ordinance called the Administration of Evacuee Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity), and includes any property- (1) which has been obtained by any person from an evacuee after the 14 day of August, 1947, by any mode of transfer, unless such transfer has been confirmed by Custodian, or (2) belonging to any person who, after the commencement of this Ordinance, does any of the acts specified in Clause (e) of Section 2, or in which any such person has any right or interest, to the extent of such right or interest, but does not include- (i) any ornament and any wearing apparel, cooking vessels or other household effects in the immediate possession of an evacuee; (ii) any property belonging to a joint stock company the registered office of which was situated before the 15 day of August, 1947, in any place no forming part of Pakistan and continues to be so situated after the said date; 6. Section 7 of Ordinance No. XXVII of 1949 empowered the Custodian appointed thereunder to pass an order declaring any property, which satisfied the definition in Section 2(f) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of events, on December 15, 1949 the Custodian made an application dated December 12, 1949 both under Order 9, Rule 9 of CPC, 1908 and under Section 17(2) of Ordinance No. XXVII of 1949 praying for restoration of the application which had been dismissed for default on December 10, 1949 and for setting aside the sale as provided by Section 17(2) of Ordinance No. XXVII of 1949. The application dated August 24, 1949 was restored on February 11, 1950 and that application was heard on February 28, 1950. The application was dismissed on March 24; 1950. 9. Against the order of the Sub-Judge, 1st Class, Delhi dated March 24, 1950 the Custodian filed and appeal No. 97 of before the High Court of Punjab and one of the grounds urged in the course of that appeal was that the learned Sub-Judge had erred in not considering the effect of Section 17 of Ordinance No. XXVII of 1949 on the case. That appeal was dismissed by a Single Judge of the High Court of Punjab at Chandigarh on August 26, 1958. 10. The learned Single Judge dismissed that appeal on August 26, 1958 on the ground that as the earlier order dated March 28, 1949 passed by the Sub-Judge, 1st Class, Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the provisions of Ordinance No. XXVII of 1949 and the Central Act insofar as the question which arises for consideration in this appeal is concerned. 14. The main ground urged in support of the above appeal by the appellants of whom appellant No. 1, Jaswant Singh is the auction-purchaser, is that the order dated March 28, 1949 passed by the Sub-Judge, 1st Class, Delhi having become final, it would operate as a bar to any enquiry into the application which had been made by the Custodian after the promulgation of Ordinance No. XII of 1949 and Ordinance No. XXVII of 1949. This ground is based on the principles underlying Section 11 of the CPC, 1908. That section provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the fame parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation IV to that section provides that any matter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinance No. XII of 1949, and therefore the Sub-Judge, 1st Class, Delhi should have taken into consideration the provisions of Ordinance No. XXVII of 1949 on March 24, 1950 when he disposed of the said application. As mentioned earlier, the learned Sub-Judge had not referred to Ordinance No. XXVII of 1949 at all in the course of his order. Sub-section (2) of Section 17 of Ordinance No. XXVII of 1949 was wider in its scope and content than Section 8 of the East Punjab Act which arose for consideration at the time when the order dated March 28, 1949 was passed by the court. Section 17(2) of Ordinance No. XXVII of 1949 which conferred a new right on the Custodian provided that any transfer of evacuee property under orders of a court or any other authority made after the 14 day of August, 1947 was liable to be set aside if an application was made to such court or authority by or at the instance of the Custodian within three months from the commencement of the Ordinance. A comparison of Section 8(2) of the East Punjab Act with Section 17(2) of Ordinance No. XXVII of 1949 would show that whereas Section 8(2) of the East Punjab Act affected sales of properties by court which had been atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata 15. One other submission made on behalf of the appellants in this case is that no application had been made by the Custodian relying expressly upon Section 17(2) of Ordinance No. XXVII of 1949. There is no substance in this submission because we find that there is a specific reference to the said provision in the application dated December 12, 1949, filed before the court of the Sub-Judge, 1st Class, Delhi on December 15, 1949. This application is referred to by the Sub-Judge at the commencement of this order dated March 24, 1950 while the application dated August 24, 1949 is referred to in the third paragraph of that order. It appears from that order that the Sub-Judge had consolidated both the applications and disposed them of together by the same order though he failed to apply the provisions of Section 17(2) of Ordinance No. XXVII of 1949. Hence it cannot be accepted that no fresh application had been made after Ordinance No. XXVII of 1949 had come into force. 16. In the result, we affirm the decision of the Division Bench of the High Court of Punjab and dismiss the appeal. 17. We, however, make it clear that the setting aside of ..... 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