1. The question for consideration in this appeal is, whether Sheikh Muiz-ud-din is entitled to obtain a refund of the money due to Bashir-ud-din, the late de facto mutwalli of the trust. It appears that a suit was filed by certain persons to dislodge Bashir-ud-din from the position of the mutwolli of the trust. It suit was decreed by the Trial court and a Board of Trustees was cointed, to whom Bashir-ud-din was feed to pay certain trust money sets. Subsequently, that decree was (sic) by this Court, which came to the in that Bashir-ud-din had acted, mutwalli of the trust sufficient-pitied to remain in possesion property as such. By decree of this Court Bashir-ud-din entitled to claim a refund by and costs, which he had to the judgment-debtors. A portion of the, said money was realised by Bashir-ud-din in his life-time. An application was now made by his son, Muiz-ud-din, for the recovery of the balance. Its allegation is that he was appointed by Bashir-ud-din, the late mutwalli, as his successor to the office, but the evidence adduced by him on that point was disbelieved by the Court below, and we are not prepared to differ from that view.
2. It appears, however, that on the death of Bashir-ud-din, Muiz-ud-din succeeded in getting mutation of names effected in his favour in respect of the trust property, and that he has since then been in possession of the trust property as the de facto mutwalli of the trust. In that capacity we think he is entitled to claim a refund of the monies, provided he agrees to credit the same to the trust and to duly account there fore to the person or persons who may hereafter be declared lawfully entitled to the mutwalliship. It is urged on behalf of the judgment-debtors-respondents that the payment of the money to Muiz-ud-din should be withheld, till the question of mutwalliship is finally decided by a competent Court The judgment-debtors can not be allowed to hold back the trust monies, but in the interest of the trust, we consider; it advisible that we should not allow Muiz-ud-din to withdraw the money, which may be realized by execution, if the-opposite, party take steps within a reasonable period to-get the question of the mutwalli-ship to the trust adjudicated in a proper Court.
3. We allow the appeal accordingly and, setting aside the order of the Court below, allow the execution to proceed subject to the condition that the money realised by execution or paid into Court shall remain in deposit until adequate security is filed to the satisfaction of the Court below for a refund of the same to the person' entitled or for a period of six months in order to enable the judgment-debtors to contest the right of Muiz-ud-din to act as the lawful mutwalli of the trust in succession to his father Bashir-ud-din. If no suit is filed within that period to contest the validity of that office, Muiz-ud-din will be entitled, to withdraw the money from Court without such security. If a suit is filed, the money shall remain in deposit till such security is filed or the question of the right of Muiz-ud-din to succeed to the office of mutwalli is determined in due course. The parties will, under the circumstances, bear their own costs of this appeal.