Judgment

GAJENDRAGADKAR, J. (who delivered the majority judgment on behalf of Sinha, C. J., himself, Subba Rao and Wanchoo, JJ.) : The Associated Hotels of India Ltd., and its Managing Director Mohan Singh Oberoi (hereinafter called appellants 1 and 2 respectively) had filed an application in the High Court of Punjab under O. 45, R. 15, C. P. C., for executing a decree passed by the Federal Court of Pakistan in favour of appellant 2 and against Jodha Mal Kuthalia (hereafter called the respondent). The said application was dismissed but, on an application made by the appellants under Art. 133(1) (a) and (c) of the Constitution the said High Court granted a certificate to the appellants and it is with the said certificate that they have preferred the present appeal before this Court.

2. It is necessary at the outset to state the material facts leading to the appellants application before the High Court under O. 45 R. 15. It appears that by an agreement dated October 2, 1947, the respondent had agreed to sell to the appellants certain property known as Nedous Hotel at Lahore for Rs. 52,75,000. In pursuance of the terms of the said agreement the appellants had paid the respondent Rs. 5,00,000/- by way of earnest money. It, however, turned out that the respondent s title to the property in question was defective, and so the sale could not be completed. That is why the appellants had to file a suit in the Court of the Senior Subordinate Judge at Lahore claiming to recover from the respondent a sum of Rs. 5,10,000/- this amount included Rs. 5,00,000 paid by the appellants to the respondent as earnest money and interest accrued due thereon up to the date of the suit. In the said suit the trial Judge passed a decree for Rs. 5,08,333-5-4 with future interest thereon at 5 p. c., per annum in favour of appellant 2. The claim made by appellant 1 was rejected. This decree was challenged by the respondent before the Lahore High Court. This High Court upheld the contentions raised by the respondent, allowed his appeal, set aside the decree passed in favour of appellant 2 and dismissed the appellant s suit with costs. This decree led to an appeal by the appellants before the Federal Court of Pakistan. The Federal Court in turn allowed the appeal in favour of appellant 2 and restored the decree passed in his favour by the trial Court. This decree was passed on December 21, 1953. The present application made by the appellants in the Punjab High Court under O. 45, R. 15, is intended to obtain the execution of this decree.

3. While the litigation between the appellants and the respondent was thus proceeding in the Courts in Pakistan certain other events took place in regard to the execution of the said decree to which reference must now be made. After the trial Court had passed its decree and before the date of the decision of the Lahore High Court, the appellants had put the decree in execution and thereupon the respondent had applied for stay of the said execution before the Lahore High Court. On the said application the Lahore High Court ordered that the execution taken out by the appellants should be stayed on condition that the respondent should deposit a sum of Rs. 3,00,000/- in the High Court and furnish security for the balance of the decretal amount. In accordance with this order the respondent deposited the amount and furnished the security. Subsequently when the Lahore High Court allowed the respondent s appeal he applied for a refund of the amount already deposited by him, and his application was allowed on 16-12-1949. On the same day, however, the Lahore High Court directed that information of its order allowing the respondent to withdraw the amount should be given to the Custodian. The Custodian then moved the High Court on 20-12-1949, for a review of its order on the ground that the amount in question was evacuee property and as such it vested in him. These proceedings were pending before the High Court when the appellants had taken t