S.K. Ghose, J.
1. The petitioner in this rule is the Commissioner of Wakfs, Bengal, who filed an application under Order 21, Rule 58, Civil P.C., and it was rejected. The execution proceedings appear to have been started after the Bengal Wakf Act of 1934 came into operation. Two persons successively as mutawallis filed applications under Order 24, Rule 58, Civil P.C., and these applications were dismissed for default. There was a third application' filed but was also dismissed on 30th January 1937 with the remark that the remedy of the claimant, if any, lay in a title suit as the previous claim cases were dismissed. Therefore the position was that the claim cases were not decided on the merits. Thereafter the matter came up before this Court and by the judgment dated 18th May 1937, M.C. Ghose J. directed that as there was prima facie evidence that the properties related to wakf property notice should be given to the Commissioner of Wakfs under Section 70, Bengal Wakf Act. Accordingly notice was given and the Commissioner appeared and filed the application which is the subject-matter of this rule. It appears that in the application the Commissioner raised objections against the sale of the properties. The lower Court did not go into the merits of the application but took the view that since the previous petition of the mutawalli had been rejected the Commissioner was not entitled to file any application under Order 21, Rule 58, Civil P.C., and the claim case was not maintainable. Now it appears to me that since by the order of this Court notice had been given to the Commissioner under Section 70(1) of the Act, the Commissioner was entitled to appear and take part in the proceedings whether under Section 71 or under Section 72 in the interest of the wakf. Therefore he was entitled to file his petition of claim and there appears to be no reason why his petition should be thrown out merely on the ground that previous petitions had been dismissed. It seems to me that the Commissioner is entitled to have his petition heard on the merits. I must therefore set aside the order complained against and direct that the petition of the Commissioner be heard according to law. The rule is made absolute. The petitioner is entitled to his costs which would follow the result. The hearing fee in this Court is assessed at one gold mohur.
Nasim Ali, J.
2. I agree with the order which my learned brother has made in this case but I would like to add a few words as regards the contention of the learned advocate appearing for the opposite party that Section 71, Bengal Wakf Act of 1934, enables the Commissioner of Wakfs to intervene and to defend a suit or a proceeding on behalf of and in the interest of the wakf only when the suit or proceeding is in respect of property which is admitted by all the parties to the suit or proceeding to be wakf. I am unable to accept this contention in view of the words 'by or against a stranger to the wakf or any other person' in Section 71 of the Act. If a person attaches certain wakf property in execution of a decree for money obtained against mutawalli personally on the allegation that it is not wakf the Commissioner of Wakfs can intervene and oppose the attachment and sale of the property on behalf of and in the interests of the 'wakfs. The proper way to do it is by preferring a claim under Order 21, Rule 58, Civil P.C. There is no other provision under the law under which he cant release the wakf property from attachment.