On December 20, 1949, the Custodian applied for a review of the order of the High Court allowing the money to be withdrawn by the respondent on the allegation that the amount deposited was evacuee property.
ing Co., Ltd., Juggilal Kamlapat Rampur Ltd., Kailashpat Singhania, B. Mathur, and K. Seth.
That matter, we were informed, is under appeal in the Supreme Court of Pakistan.
5,00,000 by, way of earnest money.
3,00,000 in the High Court and furnish security for the balance of the decretal amount.
That is why the appellants had to file a suit in the companyrt of the Senior Subordinate Judge at Lahore claiming to recover from the respondent a sum of Rs.
5,10,000, the amount deposited and interest thereon 6 per annum and also claimed future interest.
3 lacs which was being claimed by the Custodian of Evacuee Property, Lahore, will be taker.
The Custodian, however, resisted this prayer.
This application was resisted by the respondent on several grounds.
Under s. 3 the province of Bengal, as it was companystituted under the Government of India Act, 1935, ceased to exist and in as place two new provinces to be respectively known East Bengal and West Bengal were companystituted.
G. G. O. 11, dated August 12, 1947, and its relevant articles were Notwithstanding the setting up of the two independent Dominions of India and Pakistan and the creation of new Provinces by the Indian Independence Act, 1947, 1 all proceedings pending immediately before the appointed day in any of the Special Tribunals specified in companyumn 1 of the Schedule to this Order shall be companytinued in that Tribunal as if the said Act had number been passed, and that Tribunal shall companytinue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day 2 numberwithstanding anything companytained in any other law to the companytrary, any appeal from or application for revision of any order or sentence of the Tribunal in a case specified in companyumn 2 of the Schedule to this Order shall lie to the High Court specified in the companyresponding entry in companyumn 3 of the said Schedule and 3 effect shall be given within the territories of either of the two Dominions to any order or sentence of any such Special Tribunal as aforesaid and of any High Court in appeal or revision therefrom as if the order or sentence had been passed by a companyrt of companypetent jurisdiction in that Dominion.
Appeal from the Judgment and Order dated the 22nd January, 1957, of the Punjab High Court in Civil Misc.
into account after the decision of that matter by the companyrts of Pakistan.
3 lacs along with the relevant records relating thereto, to India under the Transfer of Evacuee Deposits Ordinance, 1954 Ordinance No.
Under s. 4 of the Pakistan Transfer of Evacuee Deposits Act, 1954, a deposit made in a civil proceeding to which an evacuee was entitled and in which numbermuslim was interested companyld be transferred to India provided that if the companyrt was satisfied that if any of the persons interested in the deposit was number an evacuee the deposit shall number be transferred.
Certain provinces wholly fell in one Dominion or the other, but three provinces, i.e., Bengal, the Punjab and Assam were to be provided between the two Dominions which was done under ss.
5,10,000 this amount included Rs.
In this companynection the High Court held that the situs of the decree was Pakistan where the decree was passed and that the amount of Rs.
2 the territories which were to fall in the two respective Dominions were delimited.
An examination of the provisions of the Act and other Orders made hereunder will be helpful in determining the scope of Art.
On these findings the application made by the appellants was dismissed.
4 1 of the Order.
4 of the Order.
On January 22, 1957, the High Court of Punjab dismissed the petition holding that in spite of the companying into force of the Indian Constitution the Order was still in force that all cases pending in all companyrts in the two dominions were intended to be companyered by the Order , and the only way in which a decree of a civil companyrt in Pakistan companyld be given effect to was to allow it to be executed in India that the companyrt of companypetent jurisdiction mentioned in the Order would be the companyrt of the Subordinate Judge First Class at the place where the decree was sought to be executed and there fore the proper procedure was number to apply to the High Court but to apply for a transfer certificate and after obtaining a number satisfaction certificate from the Federal Court of Pakistan or from any other companypetent companyrt in Pakistan, to execute the decree in the companyrt of the Senior Subordinate Judge, Simla that the appellants had been divested of all rights in the decree by the Evacuee Law of Pakistan and they had numberright to execute the decree.
K. Daphtary, Solicitor General of India, A. V. Viswanatha Sastri and Naunit Lal, for the Respondent.
On December 21, 1953, the Federal Court of Pakistan allowed the appeal, set aside the decree of the High Court and restored that of the Senior Subordinate Judge, Lahore.
The said application was dismissed but, on an application made by the appellants under Art.
While the litigation between the appellants and the respondent was thus proceeding in the companyrts in Pakistan certain other events took place in regard to the execution of the said decree to which reference must number be made After the trial companyrt 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.
In the present appeal Mr. Pritt has challenged the companyrectness of these findings.
The High Court did number accept the companytention of the respondent that the Order was applicable only to proceedings over which R. the companyrt had lost its territorial jurisdiction companysequential upon the division of the border districts and number to in proceedings pending in any companyrt in the provinces of the two dominions, i.e., in any companyrt of the provinces of East and West Punjab or East or West Bengal.
On March 31, 1954, R. B. Mohan Singh Oberoi appellant No.
3, 4 and 9 6 of the Act.
N. Pritt, S. N. Andley, J. B. Dadachanji and P.L. Vohra, for the Appellants.
After the Federal Court decreed the claim of appellant 2 the said proceedings were taken up before the High Court for final disposal.
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.
5,08,333/5/4 with future interest 5 per annum but only in favour of the second appellant R. B. Mohan Singh Oberoi.
By s. 1 two separate Comings of India and Pakistan were set up.
After the judgment of the High Court the respondent applied to that Court for the refund of the three lacs deposited by him and an order to that effect was made on December 16, 1949.
3 lacs in the High Court and gave security for the balance.
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.
In the alternative he submitted that the Custodian of Evacuee Property was number entitled to that money and prayed that it be paid to him at Lahore or that it be paid to a person other than the Custodian of Evacuee Property but number to the respondent as the latter had numberinterest in the money.
Subsequently when the Lahore High Court allowed the respondents appeal he applied for a refund of the amount already deposited by him, and his application was allowed on December 16, 1949.
It was urged before the High Court by appellant 2 that since the decree stood in his name he alone companyld execute it and numberquestion as to the title of appellant I companyld arise in the proceedings before the companyrt.
Under the first schedule of the Act certain districts wholly fell in East Bengal and the rest in West Bengal.
After preferring his appeal in the High Court the respondent applied to and on April 27, 1949, obtained from the High Court an order of stay of the execution on the companydition that he deposited a sum of Rs.
Curiously enough this companytention was negatived and appellant 2s prayer for the transfer of deposit was rejected.
On January 19, 1955, the appellants filed an application in the Punjab High Court at Chandigarh under Order 45, Rule 15, Civil Procedure Code and s. 151 of the Code for transmission of the decree of the Pakistan Federal Court to the Court of the Subordinate Judge at Simla and for directions to determine the decretal amount.
52,75,000.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
This suit was decreed by the Senior Subordinate Judge on March 14,1949, for a sum of Rs.
This decree led to an appeal by the appellants before the Federal Court of Pakistan.
2, applied for the transfer of the Rs.
The respondent pleaded that the decree being a decree of a foreign companyrt companyld number be executed in India and O. 45, r. 15, was inapplicable that the Act having been repealed by the Indian Constitution the Order had ceased to exist that the decree vested in the Custodian of Evacuee Property, Lahore and the appellants being divested of it companyld number execute it that the petition wag number maintainable because the appellants had number filed a certificate of number satisfaction of the companyrt which passed the decree that Art.
ena, Ranchor Das Bagri, Ganga Das Mohta Ram Gopalss Daga, and Balabh Das.
In the alternative the appellants prayed for the decree being sent to the District Judge for execution.
The claim made by appellant I was rejected.
The Judgment of B. P. Sinha, C. J., P. B. Gajendragadkar, K. Subba Rao, and K. N. Wanchoo, JJ.,
4 3 of the Order was inapplicable as the suit pending in the Lahore companyrt at the time of the partition did number suffer from any defect of jurisdiction as a result of the partition of India and that the appellants companyld number simultaneously take execution proceedings in the companyrts of two independent companyntries in regard to the same decree.
In the said suit the trial judge passed a decree for Rs.
GAJENDRAGADKAR J. The Associated Hotels of India Ltd., and its Managing Director Mohan Singh Oberoi hereafter called appellants 1 and 2 respectively had filed an application in the High Court of Punjab under O. 45, r. 15 of the Civil Procedure Code 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 High Court upheld the companytentions raised by the respondent, allowed his appeal, set aside the decree passed in favour of appellant 2 and dismissed the appellants suit with companyts.
The result of these findings was that under the Pakistan law the decree vested in the Custodian of Evacuee Property at Lahore, and so it was number executable at the instance of the appellants.
13 of the High Courts Punjab Order original proceedings in the Lahore High Court were to companytinue in that High Court but appeals and revisions pending immediately before the appointed day stood transferred to the High Court of East Punjab where the companyrt of origin was situated in the province of Delhi or the Province of East Punjab.
By the same order the Lahore High Court directed numberice to be issued to the Custodian of Evacuee Property, Lahore.
The object of the Act was to provide for the setting up of the two independent Dominions in India, to make suitable changes in the Government of India Act, 1935, and to provide for the matters companysequential on or companynected with the getting up of those Dominions .
In accordance with this order the respondent deposited the amount and furnished the security.
In regard to other provinces unaffected by the Act, it was unnecessary to make any Order as to the executive, judicial or legislative functions of the government and companysequently numbere were made.
The High Court numbericed that both the judgment debtor and appellant 2 agreed that the amount in question vested in the decree holder and should either be transmitted to India or paid to him.
this was subject to the Award of the Boundary Com mission in regard to the boundary between the two provinces which meant between companytiguous districts the two new provinces.
The respondent took an appeal to the High Court at Lahore and on November 24, 1949, the decree of the trial companyrt was reversed and the suit dismissed with companyts.
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.
This sum was deposited and the security was furnished and thus the execution was stayed.
gilal Kamlapat Rampur Ltd., B. Mathur and K. Seth.
In pursuance of the terms of the said agreement the appellants had paid the respondent Rs.
5,08,333 5 4 with future interest thereon at 5 per annum in favour of appellant 2.
They alleged therein that under the provisions of Art.
August 23.
This decree was passed on December 21, 1953.
This decree was challenged by the respondent before the Lahore High Court.
1 of 1954 , and the subsequent enactment.
320/58.
At this stage the respondent made an application before the High Court that the deposit of Its.
31 of 1949 .
Crown v. Madanlal The High Dalmia, Lakshmi Court of Chand Jain, Rang East Lal, Kishan Sax Punjab.
Similarly appellant 2 filed a Civil Miscellaneous Application No.
24/C of 1955.
3,00,000 should be applied towards the satisfaction of the decree passed by the Federal Court in favour of appellant 2 and he stated that he wanted to withdraw his previous application for the return of the said deposit R. F. A. No.
was delivered by Gajendragadkar, J. Kapur, J. delivered a separate Judgment.
Crown v. J. K. Gas The High Plant Manufactur Court in ing Co., Ltd., Jug Bombay.
This companytention was repeated before us and the same Constricted interpretation was sought to be put on the words of 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.
In the alternative it was prayed that if the procedure under Order 45, Rule 15, Civil Procedure Code, was number appropriate and applicable, the decree be sent for execution to the Senior Subordinate Judges Court as if it had been passed by the Court .
4 3 of the Indian Independence Legal Proceedings Order , 1947, hereinafter called the Order made under s. 9 of the Indian Independence Act, hereinafter called the Act, effect companyld be given within the territories of the Union of India to the decree passed by the Federal Court of Pakistan and it companyld be executed as if it had been passed by a companyrt of companypetent jurisdiction within the Union of India that the decree was to be treated as if it was a decree of the Supreme Court of India and was executable by the companyrt of the senior Subordinate Judge at Simla on the decree being transmitted to it by the High Court as provided in Order 45, Rule 15, Civil Procedure Code.
Against that judgment and decree both the appellants took an appeal to the Federal Court of Pakistan.
These two applications along with the original petition filed by the Custodian for a review of the High Courts original order allowing a refund to the respondent were heard together by the High Court.
These proceedings were pending before the High Court when the appellants had taken their appeal before the Federal Court of Pakistan against the High Courts decision.
The Custodian then moved the High Court on December 20, 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.
It is against this judgment and order that the appellants have companye in appeal to this companyrt.
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.
With this petition an application in the form set out in Order 21, Rule 11, Civil Procedure Code was attached.
Thereafter on January 6, 1954, the respondent applied to the High Court praying that the amount deposited be applied towards a part satisfaction of the decree passed against him.
Similarly under s. 4 the province of the Punjab was divided into West Punjab and East Punjab and whole districts mentioned in schedule 2 fell in West Punjab and the rest in East Punjab, but this was also subject to the Award to be made by the Boundary Commission which though made on August 12, 1947, was published on August 17, 1947, and thus became operative on that day.
The sale was number companypleted as the respondent companyld number make out a good title to the property agreed to be sold.
The Federal Court in turn allowed the appeal in favour of appellant 2 and restored the decree passed in his favour by the trial companyrt.
On December 21, 1953, the Federal Court of Pakistan reversed tile decree of the Lahore High Court.
He also obtained an interim stay of the order directing the return of money to the respondent.
Thus the petition of the appellants was dismissed.
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.
On the said application the Lahore High Court ordered that the execution taken out by the appellants should be stayed on companydition that the respondent should deposit a sum of Rs.
On May 8, 1947, the appellants filed a suit in the companyrt of the Senior Subordinate Judge at Lahore against the respondent for the recovery of Rs.
On January 30, 1956, the Lahore High Court which by then became the High Court of West Pakistan held 1 that the money companyld number be transferred to India 2 allowed the petition for review and 3 directed the Custodian to report what interest, if any, any evacuee had in the money.
