Judgement

SHAH, J.: Rani Manraj Koer obtained money decrees in the two suits Nos. 9 of 1932 and 42 of 1932 filed by her in the Court of the Subordinate Judge, Lucknow, against Nawab Mohammad Ali Khan Qazilbash Zamindar, Aliabad Estate, in Uttar Pradesh. From time to time execution applications were filed by the decree holder against the Zamindar, but nothing was recovered. Rani Manraj Koer died on October 1, 1941 and the appellant was brought on the record as her heir and legal representative. Nawab Mohammad Ali Khan Qazilbash also died and five persons amongst whom was one Nawab Ali Raza Khan were impleaded as legal representatives in the execution proceedings.

2. In January 1950 Nawab Ali Raza Khan (Talukdar of Aliabad Estate) who was substantially the only judgment debtor from whose estate the amounts due were liable to be recovered, migrated to Pakistan and he was declared an evacuee under the provisions of the Administration of Evacuee Property Ordinance 27 of 1949-which was later replaced by the Administration of Evacuee Property Act 31 of 1950. The Custodian of Evacuee Property took possession of the estate of the evacuee and applied to the Civil Judge, Lucknow, for removal of attachment levied on the estate by the Civil Judge, Bahraich, in execution of the decrees at the instance of the appellant. The Civil Judge, Lucknow, by order, dated July 22, 1950 directed that the "transfer certificates" issued in the two decrees be recalled and the papers be consigned to the record. Against the order passed by the Civil Judge, Lucknow, appeals were preferred by the appellant to the High Court at Allahabad. By order, dated February 22, 1960 the High Court held that after the Custodian entered upon the management of the properties of the evacuee by virtue of S. 17 of the Administration of Evacuee Property Act, so long as the property remained vested in the Custodian under the provisions of that Act it was not liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or other authority.

3. On September 27, 1960 the appellant applied to the Custodian for an order under S. 10 (2) (n) of the Administration of Evacuee Property Act, 1950, directing that his claim for Rs. 1,27,638-2-0 under the two decrees in suits Nos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to the estate of Nawab Ali Raza Khan. The Assistant Custodian General, Evacuee Property, U. P., Lucknow, exercising the powers of the Custodian rejected the application holding that he had no power to grant relief to the appellant of the nature claimed. In exercise of his revisional jurisdiction, the Custodian General Evacuee Property, New Delhi, confirmed the order, and the appellant has, with special leave, appealed against the order.

4. The question which falls to be determined in this appeal is, whether the Custodian is entitled to entertain the claim of the holder of a money decree against the evacuee for satisfaction of his dues out of the assets vested in the Custodian by S. 7 of the Administration of Evacuee Property Act. The Custodian held that he had no such power, and the Custodian General agreed with him. Section 10 of the Act deals with the powers and duties of the Custodian generally. By sub-s. (1) it is provided:

"Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto".

Sub-section (2) provides:

"Without prejudice to the generality of the provisions contained in sub-s. (1), the Custodian may for any of the purposes aforesaid,-

(n) pay to the evacuee, or to any member of his family or to any