Section 17 of the Administration of Evacuee Property Act, 1951, barred the sale of mortgaged property in execution of a mortgage decree, and mortgagee rights constituted evacuee property under Section 2(f) of the Act.

Khosla, J.

1. It is convenient to deal with the following matters in this judgment. The facts of each case are different but many common questions of law are involved and the cases were all argued before us at the same time :

(1) F.A.O. No. 27 of 1951,

(2) E.F.A. No. 292 of 1951,

(3) L.P.A. No. 45 of 1950,

(4) E.F.A. No. 19 of 1951,

(5) E.F.A. No. 81 of 1951,

(6) C.R. No. 304 of 1951,

(7) E.F.A. No. 109 of 1950,

(8) E.F.A. No. 105 of 1951,

(9) E.F.A. No. 53 of 1951.

(10) E.F.A. No. 101 of 1951 and

(11) E.F.A. No. 115 of 1951.

In all these cases the meaning, scope and validity of Section 17 of the Administration of Evacuee Property Act XXII of 1951 is involved and in order to appreciate the point at issue it is necessary to state the facts of at least one case, and I choose L. P. A. No. 45 of 1950. In this case Thakar Singh held a mortgage upon a house and brought a suit for the recovery of the amount due on the basis of the mortgage. On 23-8-1948 he obtained a final decree for the recovery of the amount due on the mortgage by sale of the mortgaged property. On 4th October 1948 Thakar Singh took out execution and prayed for the sale of the mortgaged property. Objection was taken by the Custodian, Evacuee Property, East Punjab, on the ground that the mortgaged property was not liable to sale in execution of a decree as such sale was barred by the provisions of Section 8 of the East Punjab Evacuee (Administration of Property) Act of 1947. The executing Court repelled this objection and ordered the sale of the property. Against this order two appeals were filed to this Court one by the judgment-debtor who is an evacuee and the other "by the Custodian, Evacuee Property. These appeals were heard by Kapur J. who took the view that Section 8 was no bar to the sale of the mortgaged property and dismissed both the appeals.

The judgment-debtor appealed under Clause 10 of Letters Patent. The question for decision in this case therefore is whether the sale of the mortgaged property in execution of a mortgage decree is barred by the provisions of Section 8 of the Act of 1947 which is somewhat analogous in terms to Section 17 of the Act now in force. A similar point is involved in E. F. A. (sic) 31 of 1951 and E. P. A. No. 109 of 1950. In (sic) these cases the property has been ordered (sic) be sold and the appeal is against the order (sic) the Custodians objections. In some of (sic) cases, for instance E. F. A. No. 105 of 1951 (sic) E. F. A. No. 292 of 1951 the property has (sic) ready been sold. In F. A. O. No. 27 of 1951 (sic) executing Court ordered the appointment of (sic) receiver and the Custodian appeals to this Court on the ground that a receiver in respect of evacuee property cannot be appointed. Execution First Appeal No. 292 of 1951 arises out of a money decree in execution of which evacuee property was sought to be sold. The objections of the Custodian were allowed and the execution application was filed. The appeal is by the decree-holder.

2. There can be no doubt that evacuee property cannot be sold in execution of a money decree nor can a receiver be appointed in respect of evacuee property in the course of execution proceedings. On this point all parties are agreed and the provisions of Section 17 of Act XXXI of 1950 as amended by Central Act XXII of 1951 are quite clear and in cases where evacuee property is sought to be sold in execution of a money decree or a receiver has been appointed no further point arises. I may therefore at once dispose of F. A. O. No. 27 of 1951 and E. F. A. No. 292 of 1951. F. A. O. No. 27 of 1951 must be allowed and the appointment of a receiver set aside. The custodian who is the appellant before us will continue to remain in charge of the evacuee property. In the circumstances there will be no order as to costs in this case.

3. With regard to E. F. A. No. 292 of 1951 the decree-holder sought to put up to sale evacuee property in execution of a money decree. This is clearly against the p