TaxTMI 
TaxTMI 
1985 (5) TMI 255
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....ssession 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 Rs. 85,000 which was the balance of the consideration payable under the agreement to sell referred to above and for Rs. 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 Rs. 86,000 along with costs of Rs. 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 Sardar Mela Singh under the agreement....
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....de 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 Property (Chief Commissioners, Provinces) Ordinance, 1949 (Ordinance N....
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...., 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) thereof as 'evacuee property' and on such declaration being made such property vested in the Custodian by virtue of Sub-section (2) of Section 8 thereof. It provided that wher....
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....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, Delhi on the basis of the East Punjab Act had become final, it was not open to the Custodian to reagitate the matter again after the promulgation of Ordinance No. XII of 1949 by the Governor-General. Surprisingly, the learned Single Judge di....
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....ction-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 which might or ought to have been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit. It is well settled that in order to decide the question whether a subsequent proceeding is barred by res judicate it is necessary t....
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.... 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 attached after December 31, 1947, Section 17(2) of Ordinance No. XXVII of 1949 affected any transfer of evacuee property under orders of a court or any other authority made after the 14 day of August, 1947. In the present case the properties in question had been attached by the court on October 9, 194....