ASSOCIATED HOTELS OF INDIA LTD Vs. R B JODHA MAL KOTHALIA
HIGH COURT OF PUNJAB AND HARYANA
ASSOCIATED HOTELS OF INDIA LTD
R B JODHA MAL KOTHALIA
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(1.) THIS is an application for the execution of a decree passed by the Federal Court of Pakistan. The application purports to have been made under the provisions of Order XLV Rule 15, Civil procedure Code and the points for our decision are whether this application can be entertained and if the decree passed by the Federal Court of Pakistan is capable of being executed in this country. The decree-holder in this case is B. B. Mohan Singh Oberoi who is one of the Managing directors of the Associated Hotels of India, Limited. The Judgment-debtor is R. B. Jodha Mal kothalia. Both the decree-holder and the Judgment-debtor are citizens of India and the judgment-debtor owns property in India.
(2.) THE circumstances which have given rise to this case are briefly as follows. The decree-holder entered into an agreement with the judgment-debtor for the purchase of property which is now situated in Pakistan. A sum of rupees rive lacs was advanced by the decree-holder to the judgment-debtor in anticipation of the completion of this transaction. For some reason which is not relevant for our purpose the sale could not be completed and the intending purchaser (the decree-holder before us) filed a suit for the recovery of the earnest money which he had paid to the vendor. The suit was instituted in the Court of the Senior Sub Judge, Lahore, who passed a decree in favour of the plaintiff on the 14th March 1949. The judgment-debtor Jodha Mal filed an appeal to the Lahore High Court and at the same time applied for the stay of execution proceedings which were started by the decree-holder. The application for stay was considered by khurshid Zaman J. and the order passed on the application was that execution would be stayed on condition the judgment-debtor deposited a sum of rupees three lacs in the High Court and furnished security for the balance due upon the decree to the satisfaction of the executing Court. This order was in due course implemented and the judgment-debtor deposited rupees three lacs in the Lahore High Court. He also gave security for- the balance. On the 24th November 1949 the appeal of Jodha Mal was accepted and Mohan Singh Oberoi's suit was dismissed. Immediately thereafter Jodha Mal applied for the refund of rupees three lacs which he had deposited. An order was passed ex parte allowing withdrawal of the amount.
(3.) AFTER independence India, as well as Pakistan had enacted laws to administer evacuee property and on the day when the order for the withdrawal of the money was passed in favour of jodha Mal the Custodian of Evacuee Property was functioning in Pakistan. The High Court ordered that the Custodian be informed of this order. The Custodian immediately took action and applied for the review of the order allowing Jodha Mal to withdraw the money. He contended that the deposit of rupees three lacs was evacuee property. While these proceedings were going on in the High Court an appeal against the High Court's order was preferred to the Federal Court of Pakistan and on 21-12-1953 the Federal Court allowed the appeal and restored the decree passed by the Senior Sub Judge. The amount of the decree had by now swelled a little and costs incurred in the Federal Court were added to it. Jodha Mal made. an application soon afterwards to the Lahore High Court praying that the deposit made by him be applied towards the satisfaction of the decree passed by the Federal Court.;
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