Judgment

KRISHNA IYER, J.:- The principal appeal, C.A. 2303 of 1968, has arrived in this Court by certificate, under Art. 133 (1) (a) of the Constitution, granted by the High Court of Delhi. (The other, C.A. 2248 of 1968 has been extinguished by efflux of time and even otherwise is not pressed, since counsel concedes the decision to be just).

2. The subject matter is large, the grounds of litigation many, the arguments long and yet the issues of law and disputes of fact are few although their ultimate decision where justice and law have, we think, come to cordial terms, has been reached after uneasy hours but with an easy conscience. Hopefully we avoid burdening the judgment with heavy historical material much of which has been wisely jettisoned to help turn the forensic focus on the three-pronged attack on the decree made by counsel for the appellant Shri. S. T. Desai.

3. Even so, the sequence and significance of events leading up to the current controversy, sprawling across India and Pakistan and surviving for nearly three decades now, may be unfolded with advantage. Now to the story. Lahore was the venue of the earlier forensic episodes. The legal saga formally began in undivided India when the 1st appellant, Kuthalia, the owner of Nedous Hotel, agreed to sell it on October 2, 1946 for a price of Rs. 52,75,000/- to the 1st respondent Oberoi who became a name in the hotel industry. An earnest money of Rs. 5,00,000/- was advanced and the time fixed for comnletion of the sale was January 20, 1947. On alleged breach of contract, Civil Suit No. 514/61 of 1946 was filed in the Court of the Senior Sub Judge, Lahore, by the 1st respondent (Oberoi) as the 1st plaintiff and the Associated Hotels of India Ltd., as the 2nd plaintiff, for recovery of the earnest money with interest. A decree in favour of the 1st plaintiff was made in the sum of Rs. 5, 08, 333- 5-4 with future interest and costs. So far as the 2nd plaintiff was concerned - the reason for whose presence as party is obscure, if not oblique the suit was dismissed. An appeal was successfully carried by the present appellant to the High Court of West Pakistan in Lahore since, by the time the trial Court s decree was made, the Great Divide had happened with all the blood and tears of political history and traumatic effects on the law and life in both the countries. The uprooting and overturning of human masses led to evacuee legislation on both sides of the frontiers and the common case of the parties is that both of them are evacuees under the relevant Pakistani laws. The Lahore High Court, on 24th November, 1943 dismissed the suit in toto, but, undaunted Shri Oberoi moved the Federal Court of Pakistan which restored the decree of the trial Court (on 21-12-1953) in reversal of the High Court s decree. Thus the final Court in Pakistan at the relevant time granted a decree in favour of the 1st respondent, against the appellant, and that stands. This land mark event closes the chapter of substantive rights and here begins a set of encounters in realising the fruits of the decree. The crescendo of this unique series is the persuasive but opposing submissions we have listened to.

4. Two crucial factors gave a dramatic turn to the course of the conflict viz., evacuee legislation and the deposit of Rs. 3,00,000/- in Court, in connection with the decree, pending the High Court appeal. A brief narration of these matters is now necessary to follow the development of the dispute before us. In the High Court, stay of execution was sought and granted on condition of deposit of Rs. 3,00,000/- on July 16, 1949 and furnishing of security for the balance. Pursuant thereto, the sum was deposited by the judgment debtor into the executing Court, but the decree holder, on objection by the former, was not allowed to withdraw the money before disposal of the appeal All this took place in July 1949. Thus a key fact, whatever its impact, emerges that the judgment debtor (appellant) had put into