The impugned enactments were valid legislation so far as land was concerned leaving out such portions as were invalid but which were severable from the rest. The sale of evacuee property in execution of the decree was wholly null and void. The Custodian was not debarred by the rule of constructive res judicata from challenging the validity and legality of the auction-sales which had been held.

A.N.Grover, J.

1. This judgment will dispose of Execution First Appeal No. 54 of 1952 and the connected cases (Execution First Appeal No. 4-D of 1952, Execution First Appeal No. 96 of 1952, Civil Revision No. 211-D of 1956 and Civil Revision No. 212-D of 1956) which have been referred to a Full Bench owing to the importance of certain questions which arise for determination. It would suffice to set out briefly the facts in the first case.

2. In January 1949 a Court at Meerut (In Uttar Pradesh) passed a preliminary mortgage decree in favour of Piyare Lal, respondent No. 2 in the present appeal, against Khan Bahadur Ghulam Hussain in his presence. Some time later the judgment-debtor became an evacuee and on 7th October 1949 of the Custodian of Evacuee property was informed of the proceedings by the Meerut Court. On 11th of October 1949 the Custodian appeared there in the proceedings relating to the final decree and raised an objection that no decree should be passed on 20th April 1950, but that failed and a final decree was passed.

3. The decree-holder got the execution transferred to the Court at Delhi. In July 1950 the Custodian raised on objection under section 17 of the Administration of Evacuee Property Act, 1950 (which will be referred to as the Act). On 19th August 1950 a similar objection was raised but these objections were dismissed. The mortgaged property was put to sale in November 1950 and was purchased by Dugra Parshad and Kartar Chand, Durga Parshad being the appellant and Kartar Chand, being respondent No. 4. On 16th December, 1950 the sale was confirmed in favour of the aforesaid auction-purchasers and on 3rd January 1951 the executing Court certified the fact of satisfaction to the transferor Court at Meerut. On 17th March 1951 the Custodian applied that possession of the property sold be not delivered to the auction-purchasers. On 28th April 1951 section 17 of the Act was amended by the amending Act XXII of 1951 with retrospective effect. On 6th August 1951 the objections of the Custodian which had been filed in March 1951 were dismissed. On 29th August 1951 the Custodian filed another set of objections based on section 17 of the Act as amended. By an order dated 12th January 1952 the executing Court allowed the objections and set aside the sale.

4. Before stating the first point, which relates to the constitutionality of the East Punjab Evacuees (Administration of Property) Act, 1947 (to be referred to as the Act of 1947), which was extended to Delhi and the Administration of Evacuee Property (Chief Commissioners Provinces) Ordinance, 1949 (to be referred to as Ordinance No. XII), it is necessary to give a brief history of the Evacuee Legislation from the very beginning. The Act of 1947 received the assent of the governor-general on 12th December, 1947 and was first published in the East Punjab Gazette Extraordinary dated 13th December, 1947. By section 23 it repealed the East Punjab Evacuees (Administration of Property) Ordinance, 1957. It was extended to Delhi and remained in force till it was repealed by section 40 provided that notwithstanding such repeal anything done or any action taken in the exercise of any power conferred by the aforesaid Act shall be deemed to have been done or taken in the exercise of the powers conferred by the Ordinance as if the Ordinance was in force on the day when such thing was done. The Administration of Evacuee Property (Chief Commissioners Provinces) Amendment Ordinance No. XX of 1949 was published in the Gazette of Indian Extraordinary dated 23rd August 1949 and was enacted to amend certain provisions of Ordinance No. XII after compliance with the provisions of section 103 of the Government of India Act, 1935. The amendment were more or less of a formal nature. In August 1949 the Government of India (Third) Amendment Act, 1949, was enacted by which entry 31B was added in the Concurrent List III of the Seventh Schedule in the Government of India Act of 1935 as ada