1. This is a second appeal against a decree of the Subordinate Judge of Pilibhit. Before discussing the question of law involved it is necessary to set forth some facts. In the year 1905 Haji Ala Bakhsh, the grand-father of the plaintiff, made a wakf of certain landed property. He constituted himself mutwalli for his lifetime and directed that his grandsons, the plaintiff and the plaintiff's brother should succeed him as mutawallis. After Haji Ala Baksh died a dispute arose between the plaintiff and his brother about the profits from the property. One of them had been collecting the rents and paying out the amounts which were charged upon the property under the wakf. He put in accounts in the Court of the District Judge of Pilibhit under the provisions of the Mussalman Wakf Act (40 of 1923). The other mutawalli objected to the account. It does not appear that the District Judge of Pilibhit had any jurisdiction to decide this dispute, but he sent for the parties and discussed the matter with them and eventually arranged with their consent that the defendant-respondent, Hakim Muhammad Hasan Khan, should take charge of the property, manage it, collect rents and after making certain deductions divide the profits between the two brothers. The District Judge passed an order to the effect that a power of attorney should be drawn up and executed in the terms of the agreement which he set forth in his order.
2. The plaintiff-appellant, Maulvi Abdul Rab, on seeing the draft of the power of attorney, refused to execute it. The District Judge then passed an order that he would execute it himself on behalf of Maulvi Abdul Rab and he did so. After that the respondent took charge of the property and collected the rents and profits. This second appeal arises out of a suit which was instituted by Abdul Rab in order to obtain his share of the profits from the defendant-respondent. One of the pleas taken by the defendant-respondent was that no suit should be instituted against him unless notice had been given to him under Section 80, Civil P.C. He said that he was a public officer within the meaning of Section 2, Sub-section (17), Clause (d), Civil P.C., because he had been especially authorised by the District Judge to perform the duties of managing the property and making collections. This defence was repelled by the learned Munsif, but the learned Subordinate Judge has accepted it and has dismissed the suit upon the ground that notice had not been issued. He has also remarked that the defendant could not be sued in his capacity as a Receiver without the sanction of the Court which appointed him. The argument in this Court is that the defendant-respondent was not appointed a receiver by the Court and that he was not a public officer within the meaning of Section 2, Sub-section (17), Civil P.C. It is not clear from the proceedings of the District Judge on what ground he based his authority to execute this power of attorney on behalf of the plaintiff. He certainly had no authority under the provisions of the Mussalman Wakf Act. It is suggested on behalf of the respondent that it must be supposed that he was acting under the provisions of Section 7, Charitable and Religious Trusts Act (14 of 1920) and those of Order 21, Rule 34, Civil P.C.
3. It is suggested that the two mutawallis must be supposed to have asked for the advice or direction of the District Judge about the management of the property and that the order passed by the District Judge was a direction to them to execute a power of attorney in certain terms. It is further suggested that the District Judge was entitled to enforce that direction and that he did so by executing the power of attorney on behalf of the plaintiff. I do not think that it was intended that a District Judge should have any power to compel a trustee to follow his advice given under this section or to carry out any direction so given. The trustee is entitled to seek advice for his own protection and if he follows that advice, he is protected, but if he does not choose to follow it, he cannot be compelled to do so, although his failure to follow it would be at his own risk. This seems also to have been the view taken in Muhammad Abdul Wahid Khan v. Radha Kishun 1929 All 581. In this view the action of the District Judge was without jurisdiction and the defendant respondent had no right to collect the profits at all, and if he collected them, he was liable to be called to account by the person who was entitled. On the other hand, if it is conceded that the learned District Judge was acting properly in accordance with the provisions of Section 7, Charitable and Religious Trusts Act, and those of O 21, Rule 34, Civil P.C., then the District Judge was acting merely on behalf of the plaintiff and the defendant was in the same position as he would have been if the plaintiff had executed the power of attorney himself.
4. In other words, the defendant respondent was not an officer of the Court but merely the agent of the plaintiff. In that view of the matter he was also liable to be sued without the issue of any notice to him. In my mind it is perfectly clear from the proceedings and orders of the learned District Judge that he had no intention whatsoever of appointing the defendant-respondent to collect the rents on behalf of the Court. He was not appointing the defendant-respondent as a receiver or as an agent or officer of the Court. He was appointing him rightly or wrongly as the agent of the plaintiff. I disagree with the learned District Judge that there was any necessity to issue notice to the defendant-respondent before instituting a suit against him. I, therefore, set aside the decree of the lower appellate Court. That Court has not gone into any other of the questions involved but has decided the appeal upon a preliminary point. The case will therefore go back to the learned Judge of the lower appellate Court who will decide it upon its merits. There will be a refund of the court-fee according to the rules. The costs in this appeal will abide the result.