JUDGMENT - (1) This is an appeal from the judgment of Mr. Justice K. K. Desai in suit No. 277 of 1954.

(2) The relevant facts are as follows: The defendants Nos. 1 to 4 had agreed under a deed dated 21st February 1949 to sell to the plaintiff, who is the appellant before us, certain property situate in the city of Bombay for a sum of Rs. 2,80,000/-. Under the agreement the plaintiff paid to the defendants Nos. 1 to 4 a sum or Rs. 15,000/- as earnest money. The defendants had agreed to make out a marketable title free from all claims and demands. The plaintiff thereafter through his attorneys repeatedly called upon the defendants Nos 1 to 4 to make out a marketable title to the property but the defendants failed to make out such a title. Ultimately, the plaintiff by his attorneys letter dated 21st August 1951 put an end to the agreement for sale and called upon the defendants Nos 1 to 4 to return the earnest money of Rs. 15,000/- with interest thereon at 9 per cent per annum from 21st February 1949 and a further sum of Rs. 3,500/- being the estimated cost and the expenses incurred by him in the meanwhile. Eventually the plaintiff instituted the suit of which his appeal arises.

(3) In that suit the plaintiff has claimed a charge under Section 55 (6) (b) of the Transfer of Property Act upon the property which was agreed to be sold. It would appear that the defendants Nos. 1,3 and 4 eventually migrated to Pakistan.

(4) By a notification dated 21st April 1953 made in pursuance of sub-section (3) of Section 7 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Administration Act) the right, title and interest of the defendants Nos. 1, 3 and 4 in the said immoveable property was notified as evacuee property. By virtue of the provisions of Section 8 of the Administration Act this interest vested from that date in the Custodian of Evacuee Property, who has been joined in the suit as the sixth defendant. It would appear that the defendants Nos. 1 to 4 had effected a mortgage over this property by an indenture of mortgage dated 21st June 1951 in favour of the fifth defendant. For this reason this defendant was joined as a party to the suit and the plaintiff, apart from claiming a charge on the property, claimed priority over the fifth defendant.

(5) The defendants Nos. 1 to 4 did not file any written statement and were proceeded against ex parte. The sixth defendant by his written statement contended that the claim only related to a composite property which the Competent Officer was empowered to decide under the Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as the Separation Act) and consequently this Court had no jurisdiction to decide the plaintiffs claim. The sixth defendant further contested the plaintiffs right to the declaration in respect of the charge on the ground that this charge was not confirmed by him under Section 40 of the Administration Act. Then he pointed out that this property was sold by a competent Officer under the Separation Act and that accordingly there was no property available for sale in the suit. It may be mentioned that the suit itself was instituted on the 11th of March 1954, while the sale by the Competent Officer was effected on 15th December 1955 and a certificate of sale was granted by him to the purchaser on 24th January 1956. The sixth defendant raised some further defences with which we need not concern ourselves.

(6) The fifth defendant denied that the plaintiff was entitled to any priority in respect of his claim against the 5th defendant as mortgagee. At the hearing before Mr. Justice K. K. Desai the fifth defendant through his counsel pointed out that in the proceedings before the Competent Officer under the Separation Act, he had already been paid off the amount due to him as mortgagee and the question of priority as between the 5th defendant and the plaintiff had not remained outstanding and did not require to be tried. The learned Judge, therefore,

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