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Habibar Rahaman Vs. Saidannessa Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1924Cal327
AppellantHabibar Rahaman
RespondentSaidannessa Bibi and anr.
Cases Referred and Parasurama Ayyar v. Seshier
Excerpt:
- .....has been argued that the order is not a decree and consequently not appealable as such under the civil procedure code. it has further been urged that the order is not one of those expressly made appealable under the civil procedure code nor is it made appealable under any other law. we are of opinion that this contention is well-founded. it is well-settled in this court shama churn roy v. abdul kabeer (1898) 3 c.w.n. 158; in re halimal khatun (1910) 37 cal. 870; atimannessa bibi v. abdul soban (1915) 43 cal. 467, that mutwallis may be authorised to execute leases of this description, by the district judge, who, for this purpose, is competent to discharge the functions of a khazi under the mahomedan law. the nature of the proceedings was considered in fakrunnessa begam v. district judge.....
Judgment:

Mookerjee, J.

1. This appeal is directed against an order made by the District Judge in favour of two mutwallis of a Mahomedan wakf authorising them to grant a lease of the wakf property. The appellant, another mutwalli, preferred an objection to the application but did not appear to support it, with the result that the order in favour of the respondents was made ex parte on the 6th June, 1922.

2. A preliminary objection has been taken by the respondents to the competency of the appeal. It has been argued that the order is not a decree and consequently not appealable as such under the Civil Procedure Code. It has further been urged that the order is not one of those expressly made appealable under the Civil Procedure Code nor is it made appealable under any other law. We are of opinion that this contention is well-founded. It is well-settled in this Court Shama Churn Roy v. Abdul Kabeer (1898) 3 C.W.N. 158; In re Halimal Khatun (1910) 37 Cal. 870; Atimannessa Bibi v. Abdul Soban (1915) 43 Cal. 467, that mutwallis may be authorised to execute leases of this description, by the District Judge, who, for this purpose, is competent to discharge the functions of a Khazi under the Mahomedan law. The nature of the proceedings was considered in Fakrunnessa Begam v. District Judge of 24 Pergunnahs (1911) 36 Mad. 16, where it was pointed out that the proceeding is not a suit but merely a proceeding governed by Section 141 of the Civil Procedure Code. The fact that the provisions of the Civil Procedure Code regulate the proceedings does not make the order which may be passed therein appealable : Damodara Menon v. Kittappa Menon (1911) 36 Mad. 16 and Parasurama Ayyar v. Seshier (1903) 27 Mad. 504. If, then, the proceeding is not a suit, the decision therein does not fall within the scope of a decree. It is an an order an order which is not expressly made appealable by any provision in the Code of Civil Procedure or by any other statutory provision. We accordingly hold that the order is not appealable and the preliminary objection must prevail.

3. The appeal is dismissed with costs, the hearing fee being assessed at one gold mohur which must be given to each set of respondents except the opposite party No. 4 for whom Babu Probode Kumar Das appears. His client is not entitled to any costs in this appeal. The costs will not be paid out of the estate.


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