JUDGMENT

S.S. Dhavan, J. - This is a plaintiff's second appeal from the decree of the Third Additional Civil Judge, Kanpur reversing that of the First Additional Munsif, Kanpur, and dismissing his suit for the recovery of Rs. 1941/13/- from a person who had been declared an evacuee under the Administration of Evacuee Property Act. The facts are these. The plaintiff appellant Amjad Ali and the first defendant respondent Ali Hasan are brothers. They owed two debts to two different persons (creditors' names are immaterial) . Both these creditors obtained decrees against Amjad Ali and Ali Hasan for Rs. 1850/- and Rs. 2033/- respectively. The plaintiff appellant paid oil the decretal amounts to both decree holders. He then filed a suit against his brother and co-debtor Ali Hasan under Section 43 of the Contract Act for recovery of Rs. 1941/13/- as the latter's share of the debt and impleaded the Union of India as a co-defendant because Ali Hasan had been declared evacuee. The appellant paid off the decrees in 1952. But Ali Hasan had already been declared an evacuee and his property evacuee property in 1951. The decree holders who had filed suits against the appellant and his brother and obtained satisfaction of their decrees from the appellant did not implead the Custodian as a party nor did the appellant give notice of payment to the Custodian.

2. In the present suit Ali Hasan did not appear but the Custodian did, they pleaded in defence that Court had no jurisdiction. to entertain the suit. He relied on Section 46 of the Administration of Evacuee Property Act as barring the jurisdiction of the Court. This defence was rejected by the trial court which decreed the suit against both Ali Hasan and the Custodian. Qn appeal the learned Civil Judge disagreed with the trial court and held that the civil court had no jurisdiction because the matter was exclusively within the jurisdiction of the Custodian to determine. He affirmed the decree against Ali Hasan but dismissed the suit against the Custodian. Amjad Ali has come here in second appeal.

3. I have read the judgments of the courts below and heard Mr. S. N. Varma for the appellant and Mr. N. D. Pant for the respondent Union of India at some length. I am of the opinion that the decision of the lower appellate court is erroneous.

4. The facts are not in dispute. It was not denied by the respondent Union of India that the appellant Amjad Ali and his evacuee brother were jointly indebted to two persons who obtained decrees against them and that Amjad Ali alone satisfied these decrees. It was not denied that under Section 43 of the Contract Act Amjad Ali was ordinarily entitled to claim contribution from his co-debtor. But it was contended that his proper remedy was to file a claim before the Custodian under Rule 22 (as it then existed) of the Administration of Evacuee Property Rules (to be called the Rules) and not a suit in the civil court. It was contended that the Custodian had the exclusive jurisdiction to determine the appellant's claim and, therefore, the civil courts jurisdiction was barred under Section 46 of the Administration of Evacuee Property Act (to be called the Act) . This objection was upheld by the lower appellate court.

5. In my opinion the Court was in error. The appellant had a legal right to enforce against his co-debtor. The Civil court had the jurisdiction under S. 9 of the Code of Civil Procedure to entertain his suit unless its jurisdiction was barred under any other law. It is contended by counsel for the Union of India that Section 46 of the Act provides the bar. This Section runs as follows:

"Jurisdiction of civil courts barred in certain matters. Save as otherwise expressly provided in. this Act, no civil or revenue court shall have jurisdiction.

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is not evacuee property; or

(b) (Deleted)

(c) to question the legality of any action taken by the Custodi