JUDGMENT

Middleton, J C - Mt. Nanai holder of certain Post Office Cash certificates died and upon 11th March 1932 Hazrat Ghani and others obtained a succession certificate in respect of har estate, but upon the 19th of the same mouth Ghulam Mohammad instituted a regular suit for declaration that Hazrat Ghani etc., had no right to the Post Office Cash Certificates and that the plaintiff had a right to realize them. Daring the pendency of this suit a temporary injunction was issued preventing Hazrat Ghani etc., from cashing these certificates. The suit was dismissed on 27th June 1932 and on the same day a succession certificate was granted to Hazrat Ghani etc., (for the succession certificate proceedings had merely been kept pending till the decision of the regular suit). Ghulam Mohammad then appealed to this Court and also applied for an injunction to restrain the respondents from cashing the certificates. Notice was issued to the respondents but was not served until 27th July. Meanwhile they had actually cashed the certificates on 26th July. The injunction petition was dealt with by this Court on 5th August 1932 when an order issued to the Post Office preventing it from cashing the certificates. On being discovered that they had already been cashed this Court ordered that the money drawn by Hazrat Ghani etc. should be refunded into the Court of the Senior Sab-Judge. The order was dated 27th August. It is said no notice issued to the respondents from this Court but that in execution of the order the Senior Sub-Judge issued warrants against respondents. Hazrat Ghani alone contested the warrant against him in revision, and it was set aside by this Court on condition that he deposited his proportionate share of the money realized from the post office. Ultimately the appeal to this Court was successful and by order dated 29th November 1932 Ghulam Mohammad, plaintiff, obtained the decree which he had prayed for.

2. Ghulam Mohammad has now applied to obtain the money from the respondents in the previous appeal by restitution under Section 144, Civil P.C., and the Senior Sub-Judge has granted his prayer, directing payment of the money on deposit to him and also directing him to put in his further prayer regarding the balance. Hazrat Ghani, and the other original defendants come up in appeal, urging that Section 144, Civil P.C., does not apply. Counsel for appellants has pointed out the following facts: 1. The actual cash certificates were never in possession of Ghulam Mohammad, but were in the possession of appellants; 2. The money was never in possession of Ghulam Mohammad but in possession of the post office; 3. The money has not passed to the appellants by virtue of any execution of the decree which has been reversed in appeal. He relies upon and A.I.R. 1927 Lah 625 and urges that Ghulam Mohammad cannot be entitled to restitution of money which was never in his possession and which was not taken from him and given to appellants in execution of the decree.

3. The mere possession of the cash certificates has got nothing to do with the matter. They were valueless to anybody except the original owner or any person declared to be entitled to them by a Court of law. Had Ghulam Mohammad been successful in the trial Court ho could have obtained payment from the post office even if he had been unable to obtain the original cash certificates which were in the adverse possession of the defendants. The succession certificate had been withheld from issue pending the decision of the suit, and had the suit been decreed, the succession certificates would never have issued and hence the appellants would never have been able to draw the money from the post office. It is clear therefore that although the appellants did not obtain the money in execution of a decree, they did obtain it under the colour of the decree and could not possibly have obtained it unless Ghulam Mohammad's suit had been dismissed. Moreover though neither the cash certificates no