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5. Mr. Banerjee started his argument with the submission that as soon as Pakistani nationals were declared to be enemies during the Emergency period, the suit should have been deemed as abated, as the enemy had no right to claim any property in India. There is of course no dispute that when the suit was filed, the plaintiff was in East Pakistan and that at that time he was a Pakistani national. There is no dispute, and there cannot be any. that when the suit was filed, the plaintiff had his right to start the legal action. Mr. Banerjee referred to several foreign decisions and treatises on International Law and Jurisprudence to show that during war, the enemy can have no right to bring any action or continue any legal prosecution so long as the hostility continues. Mr. Banerjee also relied upon the provisions of Enemy Property Act, 1968 and the Defence of India Rules, 1962. When Mr. Banerjee relies on the law of our country, it would be no useful purpose to deal with the problems of abstract law Mr. Banerjee, however, ultimately agrees that he wants to rely upon the provisions of the Enemy Property Act, 1968 and the Orders of the Central Government declaring that the properties of the citizens of the enemy country should vest in the Custodian of enemy properties. When there is an enactment in the country, there is no necessity to rely on foreign decision based upon foreign laws or on abstract theories of law. The simple and clear argument of Mr. Banerjee is that when the suit property of the plaintiff who is a man of East Pakistan had already vested in the Custodian of enemy properties with the declaration of Emergency in India, the suit abated along with the vesting. Mr. Banerjee wants to say that with the vesting of the suit property in the Custodian, the plaintiff had no right to prosecute the suit and the suit abated automatically and in any case, the appellate Court below ought to have found that the suit was not maintainable and that it came to an end. I am afraid, I cannot accept the contention of Mr. Banerjee. Admittedly, when the suit was filed, the plaintiff had every right to start the action. During the pendency of the suit, the Emergency was declared and according to the order of the Central Government, the property of a Pak national must vest in the Custodian of the enemy properties appointed by the Central Government. The simple question, therefore, is whether due to this vesting of the suit property in the Custodian, the suit automatically abated or whether the trial Court was right to hold that the suit was liable to be dismissed as not maintainable. From the argument advanced by Mr. Banerjee it appears to me that he wants to say that by virtue of the vesting of the suit property in the Custodian, the plaintiff lost all his interest and right in the suit property and that the Custodian became the owner of the suit property. This proposition is clearly unacceptable. First of all, I wanted Mr. Banerjee to show any provision either in any Order of the Government or in the Enemy Property Ordinance or in the Enemy Property Act, 1968 which may suggest even that all the right, title and interest would devolve upon the Custodian or that the enemy owner of the property becomes divested of all his right, title and interest therein. Mr. Banerjee could not show any such provision. I have gone through the relevant Notification as mentioned earlier as also the Ordinance and the Act of 1968. First of all, I must say that there is no provision not even any indication that the enemy owner of the property shall be stripped of all his rights, and interests and that he would lose all his interest or right therein. Next, I find no indication or provision which may even tend to say that if any enemy or citizen of an enemy territory continues any suit in respect of his property in India after the date of vesting as declared by the Central Government during the pendency of the suit, the continuance of such suit by such person would be illegal and that the proceeding will be a nullity if it is not continued by the Custodian. On the contrary, from the provisions appearing both in the Ordinance and in the Act of 1968, I find that the enemy-owner of the property is not divested of all his interest and title to the property, but the Custodian for a limited purpose gets the property vested in him particularly relating to possession, management and control of the property. Virtually speaking, the Enemy Property Act is a repetition of the Enemy Property Ordinance, 1968. Section 5 of the Act says that notwithstanding the expiration of the Defence of India Act, 1962 and the Defence of India Rules, 1962, all enemy properties vested before such expiration in the Custodian of enemy property for India appointed under the said Rules and continuing to vest in them immediately before the commencement of the Ordinance shall from such commencement vests in the Custodian.

6. Section 6 of the Enemy Property Act, 1968 is to be noted. According to this Section, if any property vested in the Custodian has been transferred either before or after the commencement of the Act by an enemy or an enemy subject and where it appears to the Central Government that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, then the Central Government may, after giving a reasonable opportunity to the transferee to be heard, declare such transfer to be void and on making such declaration or order, the property shall continue to vest or to be deemed to vest in the Custodian. This provision indicates that after the vesting of the enemy property in the Custodian, an enemy may have the right to transfer the said property, but it is the Central Government which is to consider whether it will declare such transfer to be void or not. It is, therefore, clear that with the vesting of the property in the Custodian, the enemy does not lose all his interest or title to the property vested in the Custodian: Nowhere in the Act has it been stated that after the vesting, the transfer made by the enemy-owner of the property, already vested, becomes void.

7. In connexion with Section 6 mentioned above, we may consider the provisions of Section 8 of the Act. This relates to the powers of Custodian relating to the enemy property vested in him. Sub-section (1) of Section 8 says that if the property belongs to an individual enemy subject, the Custodian may incur such expenses out of the property as he considers expedient for the maintenance of that individual or of his family in India. Clause (iii) of Sub-section (2) of Section 8 authorises the Custodian to make any contract and execute any document in the name and on behalf of the enemy, the owner of the property. Clause (x) of the same sub-section also authorises the Custodian to make payments on behalf of the enemy to person other then those who are enemies. The provisions in Section 8 without any ambiguity indicates that after the vesting of the property in the Custodian, the enemy whose property has vested still remains the owner of the property and not only does he get benefit out of the property in certain circumstances, but the Custodian acts on behalf of the enemy in the matter of contract and relating to documents in connexion with the property. There can be no doubt, there-fore, that the enemy, due to this vesting in the Custodian, is not divested of all his right, title and interest in the suit property, but the vesting in the Custodian is limited to the extent of possession, management and control over the suit property and it is also temporary because Section 18 of the Act says that the Central Government may by general or special order divest the Custodian and the property be returned to the owner thereof. In view of my discussions, I, therefore, hold that due to the vesting of the suit property in the Custodian of enemy property for India, the plaintiff did not lose his right, title and interest in the suit property and that it cannot be said that the suit automatically abated or that the title of the suit property was lost to the plaintiff.

8. The next branch of argument in connexion with the first contention of Mr. Banerjee is that when during the pendency of the suit there was the vesting of the suit property in the Custodian under the order of the Central Government due to the Emergency, the suit was rightly dismissed because the Custodian did not continue the suit. Mr. Banerjee has submitted that the plaintiff had no right to continue the suit, because it was only the Custodian according to the provision of law who had interest in the suit. On this point again, I cannot agree, Clause (iv) of Sub-section (2) of Section 8 says that the Custodian or a person duly authorised by him in this behalf may institute, defend or continue any suit or other legal proceedings. In the present case, admittedly, the Custodian or anybody else duly authorised by him did not come forward to continue the suit either toeing added as a party or otherwise. There is no provision in this Act, as I find, that the enemy who started the original suit, on his property being vested according to the provision of the Act or any Rule or any order of the Central Government during the pendency of the suit, cannot proceed with the suit or continue the same in the absence of the Custodian. I find no provision which says that with the vesting of the enemy property in the Custodian the pending suit of an enemy shall abate or be dismissed. Mr. Banerjee has not been able to draw my attention to any provision in the Act or Order or Notification which may even indicate that the continuance of a suit by an enemy lawfully started would be a nullity in the absence of any Custodian, In the facts and circumstances, in my view, mere vesting of the property under the Defence of India Rules or the Ordinance or the Enemy Property Act, 1968 in the Custodian will not prevent the enemy from continuing the suit if the Custodian does not take any step or choose to continue the suit. Mr. Ghosh in this connexion referred me to two decisions of this Court appearing in . Going through those decisions. I find that the facts of those cases are quite different and the causes of action arose in different circumstances. The questions now raised before me in the present appeal were not considered there. I do not think that those decisions are relevant I, therefore, find that the first contention of Mr. Banerjee is of no avail.