P L D 1953 Sind 15 (PLP)

VELLANI, J.‑On 5th September 1949 the Judgment‑credit made this application for attachment of the judgment‑debtor s salary to recover Rs. 1,250 being the maintenance allowance for herself and her two children for the period August 1947 August 1949 at Rs. 50 per month which had been ordered on 5 July 1932. The Judgment‑creditor and her two children having been in Bombay since February, 1948, the judgment‑debt objected to the attachment on the ground that the order sought to be executed was evacuee property, and therefore the judgment‑creditor could not file the application in execution. Upon this objection, Agha, J. on 1st August 1950 referred to tine Custodian for decision the question whether the order sought to be executed was evacuee property. By his order dated 13th October 1950, the Custodian decided the question in the affirmative. He added that there was no bar to the execu tion of the decree by the evacuee, but required the proceeds of the execution to be paid to the Custodian. For the judgment debtor, reliance was placed on the pro visions of section 6, clause (1) of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 which came into force on 15th October 1949. It was conceded that the order sought to be executed was not within the definition of the word `property' in section 2 (e), and bad even otherwise not been vested in the Custodian under section 6, clause (1) or (5) of the Pakistan (Protection of Evacuee Property) Ordinance WIT of 1948. Section 6, clause (1) of Ordinance XV of 1949 reads as follows:‑ "All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947." The argument for the judgment‑debtor has been that the Court must deem that the order sought to be executed had vested in the Custodian, and hold that the application by the judgment‑creditor was incompetent, it was said words "shall be deemed always to have vested"' were precise and should be given effect to according to the natural meaning which they bear,, there being no words there to limit their effect. Stress has been laid on the word `always' to show that the Statute required the fiction to be resorted to in every case with out exception. It seems to me that the word `always' in this context has a temporal meaning and goes naturally with the words `to have vested', and not with the words `shall be deemed'. If the words `shall be deemed' needed elaboration to cover every possible case that may arise, then the words `in every case' would have been more appropriate. The words us they stand, however, are very wide, and do not appear to need elaboration. It is precisely the wideness of these words which raises the question here whether it is within the scope and the object of this provision to strike at and undo an act done by an evacuee in respect off property before it became evacuee property. It is now necessary to inquire what the purpose of the fiction may be, by reference to the provision of the Ordinance. Sections 7, 8 and 9 of the Ordinance enable the Custodian to, effect full discovery and collection of evacuee property and sections 11 and 16 enable him to look behind every transaction which may be a cloak for secreting any evacuee property, as if he were the full owner of the property from 1st March 1947, and this is precisely the fiction of section 6, clause

1. It has been said that where the words are cleat, full effect must be given to them even though the consequences may appear unjust and hard. The question here, however, is not one of injustice or hardship, but one of the scope and object of the device of fiction which the Legislature has used, and the ends it has sought to achieve thereby, and I think it is sufficient to inquire into these for and in the interpretation of the words used, without necessarily considering the scope and the object of the whole Ordinance. If it were, however, necessary to consider the scope and the object of the whole Ordinance, then the preamble to the Ordinance is of some assistance. It says that an emergency has arisen which renders it necessary to provide for the administration of evacuee property in Pakistan and for certain matters incidental thereto." In the House of Lords case of Powel v. Kempton Park Co. (L R (1899) A C 143-80 Law Times 538 at p. 540) Lord Halsbury observed "Two propositions are quite clear‑one that a preamble may afford useful light as to what a statute intends to reach, c and another that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment. The question immediately arises whether it serves the purpose of administration of evacuee property or any matter incidental thereto mentioned in the Ordinance to hold that the words `shall be deemed' in section 6 clause (1) defeat an action or proceeding commenced by a person who has since become an evacuee in relation to what has since become evacuee property. I do not see that it does. The consideration of the preamble by itself may not be sufficient to dispose of the matter completely. There is, how ever, some assistance to be derived from the considerations that section 20 of the Ordinance contemplates preservation of evacuee property, that section 20(2), clause (i) mentions the power of the Custodian to `continue any legal proceeding in any Civil or Revenue Court on behalf of the evacuee' and that section 19 of the Ordinance contemplates restoration of evacuee property. It does not seem to be within the objects to be achieved by the fiction of section 6(1) or the reasonable purposes of administration of evacuee property to hold that by the words in which the fiction has been expressed, or that in the context in which they have been used, the Legislature intended that legal proceedings validly commenced by a person who later becomes an evacuee, in respect of property which becomes evacuee property should not survive for the Custodian to prosecute to fruition. The Legislature knew that if such proceedings do not survive, the Custodian may be faced with questions of limitation which would be obstacles in his way, and such an inconvenience could not have been intended in the legislation, the object and policy of which was to facilitate administration of evacuee property and rights. It was then said that it was for the Custodian to decide the date on which a person became evacuee and his property evacuee property, and the provisions of section 34, clauses (1) and (2) were referred to, but I can find nothing in that section to debar the Court from deciding any of these two questions. In all such cases the party contending that the proceedings could not have been commenced by the person commencing them, has the burden of proving everything requisite for that contention to succeed. The result is that the contention for the judgment‑debtor fails, and the application must be heard on its merits. A. H. Contention rejected.