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Civil Appeal No. 83/23 of 1955, decided on 17th January 1956, from the order of Senior Sub‑Judge, Hazara at Abbottabad dated 4th July 1955.

Ss. 26, 28 and 31 (3)‑Claim based on decree of Court‑Notified to Deputy Commissioner‑‑Deputy Commissioner cannot hold enquiry under S. 28 and disallow such claim‑Court to proceed with execu tion of decree on production of certificate that claim has been so notified.

Where a claim of a pertain person is based on a decree, then all that the decree‑holder on the publication of the Noti fication under section 9, has got to do is to notify his claim in writing to the Deputy Commissioner within six months from the date of the publication of the notice. After he has done this, he has got to put in a certificate that he has intimated his claim to the Deputy Commissioner, and once he has done that the Court must proceed with the execution, and cannot reject the application, on the ground that the Deputy Com missioner has not admitted or rejected the claim. In fact under section 31 (1) of the Court of Wards Act, the Deputy Commissioner is specifically debarred from disallowing any claim, which is based on a decree. This clearly means that the Deputy Commissioner is not entitled to hold any inquiry as contemplated by section 28 of the Punjab Court of Wards Act, with regard to the claim based on a decree.

Muhammad Afzal Khan for Appellant.

Ghazanfar Ali Shah Government Pleader for Respondent.

‑Abdul Qadir Khan obtained a decree against Muhammad Afzal Khan for the recovery of Rs. 30,000, from the Court of Senior Sub‑Judge Peshawar on 29th November 1954. By an order published in the North- West Frontier Province Gazette dated 3rd December 1954, the Court of Wards, assumed the superintendence of Muhammad Afzal's property under the Punjab Court of Wards Act II of 1903. Notice under section 26 of the same Act was published in the North‑West Frontier Province Gazette dated 1st April 1955. On 1st June 1955, Abdul Qadir Khan put in an application for the execution of the decree in the Court of the Senior Sub‑Judge, Hazara because the property of Muhammad Afzal was situated there, along with a certificate of the same date from the Deputy Commissioner Hazara to the following effect: ‑

"Certified that Abdul Qadir Khan, son of Abdul Aziz Khan, of village Paharipura, District Peshawar, has filed a claim to the under‑signed amounting to Rs. 30,006‑8‑0 (rupees thirty thousand and six, and annas eight only), against the Court of Wards Gidarpur."

The learned Senior Sub‑Judge Hazara, however, rejected the decree‑holder's application for execution, on the ground that the certificate attached with the application did not satisfy the requirements of law. According to him the execution application could only be made after the Deputy Commissioner had made an inquiry under section 28 of the Punjab Court of Wards Act, and decided whether he was admitting or disallowing certain claim, and intimating his decision in writing in respect of such claim to the claimant thereof.

I am afraid, the order of the learned Senior Sub‑Judge, is completely misconceived. If a claim of a certain person is based on a decree, then all that the decree‑holder on the publication of the Notification under section 9, has got to do is to notify his claim in writing to the Deputy Commissioner within six months from the date of the publication of Commissioner notice. After he has done this, he has got to put in a certificate that he has intimated his claim to the Deputy Commissioner, and once he has done that the Court must proceed with the execution, and cannot reject the application,' on the ground that the Deputy Commissioner has not admitted or rejected the claim. In fact under section 31 (1) of the Court of Wards Act, the Deputy Commissioner is specifically debarred from disallowing any claim, which is based on a decree. This clearly means that the Deputy Commissioner is not entitled to hold any inquiry as contemplated by section 28 of the Punjab Court of Wards Act, with regard to the claim based on a decree.

I am consequently of the opinion that by filing the certificate, which has been given verbatim above, signed by the Deputy Commissioner, the decree‑holder complied with the requirements of law, and the Senior Sub‑Judge should have proceeded to execute the decree.

The appeal is, thus, accepted, the order of the Senior Sub‑Judge, set aside, and the proceeding sent back to the same Court to be proceeded with according to law. The appellant shall have his costs in this Court. Pleader's fee Rs. 100.

K. M. A.

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