SHAFI-UR-REMIAN, J.-Assistant Custodian of Enemy Property seeks leave to appeal against an order of the Lahore High Court passed in revision converting a first appeal whereby the rejection of the objection filed by the petitioner before the executing Court, was upheld.
2. The facts of the case, in brief, are that Mr. C. E. Bevan Pitman deceased was operating in partnership with R. B. Ishordas Kapoor Makerwal Colliery. One of the terms of the partnership was that the partnership account shall be kept in Imperial Bank, Lahore alone. Finding that Ishar Das Kapoor, the partner, had opened and was maintaining partnership account in Traders Bank Ltd. a civil suit was instituted against him on 17-1-1948 impleading also the Traders Bank Ltd. Seeking accounts. The matter was referred to arbitration and the award was handed down by an umpire according to which Traders Bank Ltd. Was made liable for a sum of Rs. 86,500. The award in so far as it was against the evacuee Ishar Das Kapoor was referred to the Additional Custodian Evacuee Property who gave a finding that the plaintiff in the suit was entitled to 6/16th share of the property till the colliery was supervised and managed by the evacuee but as from 15-9-1947 be was entitled to half share in the profits till the date of termination of the lease. The award was made the rule of the Court in regard to a sum of Rs. 86,500 and the Traders Bank Ltd. Was ordered to pay this amount to the plaintiff. A decree in terms of this award was accordingly prepared on 24-6-1964.
The decree was executed in so far as the Manager, State Bank of Pakistan, on an order under rule 52, Order XXI, C. P. C. Replied that "a balance of Rs. 73,600.12 only is available in the frozen account of the above Bank with us which will not be released till further orders from the Court". By another order dated 4-6-1965 the Court directed the Bank to remit the amount to the Court. On 23-6-1965 the Manager, State Bank of Pakistan, filed an application challenging the attachment on the ground that the sum was not attachable as the Traders Bank Ltd. Was working under the scheme of arrangement approved by the High Court under section 153 of the Indian Companies Act by an order dated 6-4-1948. This objection was dismissed for non-prosecution on 6-5-1966 and the direction to remit the amount in the hands of the State Bank of Pakistan was made absolute.
Another application was subsequently made by the Deputy Manager, State Bank of Pakistan taking up the ground that the property in dispute had vested in the Custodian, Enemy Property and as such the execution could not proceed. This petition was dismissed on 14-5-1969 on the ground that the money so attached awaiting transfer to the Court and in the hands of State Bank of Pakistan was not hit by the Enemy Property (Custody and Registration) Order, 1965. Against this order of the executing Court, a first appeal was filed in the High Court which was held to be not competent and was allowed to be-converted into a civil revision petition and dealt with as such. The learned Judge held that the earlier adjudication with regard to the scheme of administration was finally disposed of and could not be reopened. The Manager, State Bank of Pakistan could, however, take up the purely legal question of the vesting of the property in the Custodian, Enemy Property because he himself was Ex Officio Custodian of Enemy Bank. On that view of the matter the second objec--tion petition which was disposed of by the impugned order by the executing Court was held to be competent. All the same, it was held that the money which was attached under orders of Court and was awaiting its transfer to the Court, was not a property covered by the Enemy Property (Custody and Registration) Order, 1965 so as to vest in the Custodian, Enemy Property and remained available for satisfying the decree of the Court.
3. The learned counsel for the petitioner has urged before us that there was a scheme of arrange sanctioned under section 153 of the Companies Act and no part of the assets of the Traders Bank Ltd. Could be dealt with except under the scheme of arrangement and under orders of the Court.
Another ground taken up by the learned counsel for the petitioner is that the assets of the Traders Bank Ltd. Had become an enemy property under Enemy Property (Custody and Registration) Order, 1965 and on that account the executing Court and the decree could reach it. He has also contended that the appeal against refusal to treat the property as an enemy property was competent in the High Court and its conversion as a revision petition was not called for.
4. So far as the merits of the adjudication are concerned, the High Court has held that the Manager who was Ex Officio the Custodian had raised this question in execution proceedings and had not succeeded. It was conceded and the record bears it out that the money in dispute had been seized before September 1965 the date when the Defence of Pakistan Ordinance, rules thereunder, and the Enemy Property (Custody and Registration) Order were enforced. The immunity from seizure and attachment in execution of decree of the Court or otherwise would come into play if it were to be held that the property was still available for such processes notwithstanding the pro--ceedings earlier completed. The learned counsel for the petitioner to meet this finding has referred to a number of decisions to demonstrate that in the first place attachment must be not only ordered but must take place in all the details provided for under law i. e. Section 64 of the Civil Procedure Code and in case of immovable property under Order XX1, rule 54, C. P. C. In this respect he has referred to A. T. K. L. M. Muthian Chetti v. Palahiappa Chatti and others (AIR 1928 P C 139), Moncharlal Banerjee v. Bengal Immunity Co. Ltd. And another (AIR 1945 Cal. 308) and Saroop Singh v. Narsingh and others (AIR 1929 All. 846). These cases relate to attachment under rule 54 applicable to immovable property. The dis--tinguishing feature of the present case to be noted is that herein was involved attachment of property which happened to be in the custody of public officer for which rule 52 applied and only a request had to be addressed to such an officer for "such property and any interest or dividend becoming payable thereon may be held subject to further orders of the Court from which the notice is issued": Such a notice has been placed on the record and also its compliance and information that the money shall be held for satisfying the decree passed.
Where the money or property is held in deposit for the benefit of the Court for satisfaction of the decree only so much of it as is surplus to the decree can be claimed by any authority having a legal claim to it including the official assignee. This is amply supported by decisions in Bird v.
Barstow ((1892) 1 Q B 94), Chowthmul Manganmull v. The Calcutta Wheat and Seeds Association (AIR 1925 Cal. 416) and Gouranga Behari Basak and another v. Manindra Nath Das Gupta (AIR 1933 Cal. 625). Not only that there is nothing wanting in the order passed under Order XXI, rule 52, C. P. C.
The effect of the undertaking given by the Custodian of such funds, who was a Public Officer would make that amount available for the satisfaction of the decree in favour of a non-evacuee. S much of the amount therefore as was required for satisfying the decree could not at all be hit by the provisions relating to enemy property for it was not one of those sums which was payable to or held on behalf of the enemy.
5. The crux of the question raised in the High Court and in this petition is whether such an amount as was held for the satisfaction of the decree and under orders of the Court before the enforcement of the Defence of Pakistan Ordinance and the rules could be classed as enemy property. A definition of what is enemy property is to be found in rule 172, sub-rule (4) of the Defence of Pakistan Rules. According to the definition enemy property means any property including any right under a contract or otherwise, for the time being vested in, or belonging to, or held or managed on behalf of, an enemy as defined in rule 164, an enemy subject or any enemy firm, but does not include property which is evacuee property under the Pakistan (Adminis--tration of Evacuee Property) Act, 1957 (XII of 1957)". It will be seen that the effect of attachment under Order XXI, rule 52, C. P. C. Was that theamount was available to the Court for satisfaction of the decree and no part, of it was in excess of the decretal amount. On the plain definition of enemy property it could not be treated or dealt with as enemy property and the view taken by the High Court suffers from no legal infirmity.
6. As regards the bar of section 153 of the Companies Act and the scheme of arrangement, it has to be noted that there is no such scheme on the record. An objection was earlier taken and could not be pursued success--fully. It is not open to the petitioner, who had a locus standi in law only if the property were enemy property or had the character of enemy property to take up a ground which in fact was open to the Manager, State Bank of Pakistan to take and in fact was open unsuccessfully. Besides, the scheme itself was not placed on record. It was only on our pointing out that after the hearing had concluded the learned counsel for the petitioner furnished the scheme of arrangement which had been finalized in 1948. We do not consider that it plays any decisive role in the matter if the property is held to be not enemy property. The petition is therefor dismissed.