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Syed Asad Reza Vs. Wahidunnessa Begum - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.70
AppellantSyed Asad Reza
RespondentWahidunnessa Begum
Cases ReferredCollins v. Barker
Excerpt:
wakf - trustee, decree against--receiver, appointment and duties of--receiver, appointment of hindu as, whether bad--civil procedure code (act v of 1908), section 98(3)--appeal--decree made by consent of parties, whether appealable. - .....us on two grounds, first, that a receiver should not have been appointed; and secondly, that the person appointed as receiver is not suitable.2. in so far as the first point is concerned, it is manifest that the judgment debtor was not competent to appeal to the district judge on that ground at all. the order of the subordinate judge was made by consent of parties. it is well settled, as laid down in the case of biraj mohini dasi v. chinta moni dasi 5 c.w.n. 877, that an order made by consent of parties is not liable to be challenged by way of appeal: see also south american and mexican company, in re, bank of england, ex parte (1895) 1 ch. 37 : 12 r. 1 : 71 l.t. 594 : 43 w. r. 131, huddersfield banking co. v. lister (1895) 2 ch. 273 : 64 l.j. ch. 523 : 12 r. 331 : 72 l.t. 703 : 43.....
Judgment:

1. This is an appeal against an order by which the District Judge, in concurrence with the Court of first instance, has directed execution of a decree for money by the appointment of a Receiver. The respondent obtained a decree for money against the appellant as trustee of a wakf estate. In execution of that decree, the trust estate obviously cannot be sold. Payments have been made from time to time towards the satisfaction of the judgment debt but a considerable sum is still due. On the 16th April 1912 the judgment debtor paid Rs. 100 to the decree-holder and obtained an adjournment of the execution proceeding, on condition that the balance would be paid in the following month and in default of payment, he would raise no objection to the appointment of a Receiver. On the 16th May 1912 the judgment debtor defaulted to pay the money, and the Subordinate Judge accordingly appointed a Receiver. The judgment-debtor thereupon appealed to the District Judge, but to no effect. The order is new assailed before us on two grounds, first, that a Receiver should not have been appointed; and secondly, that the person appointed as Receiver is not suitable.

2. In so far as the first point is concerned, it is manifest that the judgment debtor was not competent to appeal to the District Judge on that ground at all. The order of the Subordinate Judge was made by consent of parties. It is well settled, as laid down in the case of Biraj Mohini Dasi v. Chinta Moni Dasi 5 C.W.N. 877, that an order made by consent of parties is not liable to be challenged by way of appeal: See also South American and Mexican Company, In re, Bank of England, Ex parte (1895) 1 Ch. 37 : 12 R. 1 : 71 L.T. 594 : 43 W. R. 131, Huddersfield Banking Co. v. Lister (1895) 2 Ch. 273 : 64 L.J. Ch. 523 : 12 R. 331 : 72 L.T. 703 : 43 W.R. 567, Ainsworth v. Wilding (1896) 1 Ch. 673 : 65 L.J. Ch. 432 : 74 L.T. 193 : 44 W.R. 540, Wilding v. Sanderson (1897) 2 Ch.534 : 66 L.J. Ch. 684 : 77 L.T. 57 : 45 W.R. 675. That principle is now embodied in sub Section 3 of Section 96 of the Code of 1908. It has been suggested, however, that the order was not made by consent of parties, because the Pleader who assented to it, exceeded his authority. There is no substance in this contention. The vakalatnama shows that the Pleader had the necessary authority. But even if authority in this behalf was not expressly conferred upon him, it is manifest that as the Pleader in charge of the case, he was competent to consent to an order of this description: Venkata Narasimha Naidu v. Bhashyakarlu Naidu 22 M. 538 : 8 Ind. Dec. (N.S.) 384. It is further clear that as the judgment-debtor has taken advantage of the order of the 16th April 1912, he cannot be permitted to turn round subsequently and to repudiate it. Besides, as a sum of money was paid on his behalf to the decree-holder on that date, it is fairly obvious that he himself must have agreed to the order subsequently made. We are further of opinion that the order for the appointment of a Receiver is manifestly right on the merits. No doubt, it has been suggested that a Court should not appoint a Receiver in respect of trust property. Now it may be conceded, as was laid down in Smith v. Smith (1836) 2 Y.C. Ex. 353 at p. 361 : 6 L.J. Ex. 70 : 160 E.R. 433, that a strong case must be made out to induce the Court to dispossess a trustee or executor who is willing to act. It need not also be disputed, as was laid down in Whitworth v. Whyddon (1850) 2 Mac. & G. 52 : 2 H. & Tw. 445 : 14 Jur. 142 : 42 E.R. 21 : 86 R.R. 20, that if there is no danger to property and no fact is in evidence to show the necessity of interferenes by appointing a Receiver, the Court will not appoint one. These principles, however, are of no assistance to the appellant. Here the decree has to be executed. The trust property admittedly cannot be sold. The only method by which the judgment debtor may be compelled to satisfy the claim of the execution creditor is by the appointment of a Receiver. Under these circumstances, there can be no question that the appointment of a Receiver is not merely permissible, but is really the only proper remedy: Nemai Chand Adhya v. Mir Golan Hossein 3 Ind. Cas. 353 : 37 C. 179 : 11 C.L.J. 317 : 14 C.W.N. 535. The first contention of the appellant, therefore, fails.

3. In so far as the second point is concerned, it has been argued that the person appointed as Receiver is not suitable, because a Hindu should never be appointed Receiver in respect of properties belonging to a Muhammadan Wakf though there is no statutory bar to such appointment. The objection is really based on misapprehension. The Receiver of the wakf properties does not undertake to perform religious ceremonies which can be performed only by a person duly qualified. The Receiver takes charge of the properties, collects the income and as an officer of the Court spends them under the direction of the Judge. The proper remedy of the appellant is to apply to the Subordinate Judge for directions as to the mode of application of the income. There is no ground for apprehension that proper orders will not be passed by the Judge. A portion of the income must be applied in satisfaction of the decree, the remainder may be applied, under the direction of the Court, for the necessary purposes of the endowment and there is no ground to apprehend that the religious ceremonies will suffar in any way by reason of the appointment of the Receiver. It has finally been suggested that the appellant himself might have been appointed Receiver. No doubt a person who is party to a litigation may be appointed a Receiver; but the ordinary rule is that the Receiver appointed in an action should be a person wholly disinterested in the subject-matter; and in view of the objection taken by the respondent, we do not think that this is a case where the Court should depart from the usual rule: Lloyd, In re, Allen v. Lloyd (1879) 12 Ch. D. 417 at p. 451 : 41 L.T. 171 : 23 W.R. 8, Collins v. Barker (1893) 1 Ch 578 : 62 L.J. Ch. 316 : 3 R. 237 : 68 L.T. 572 41 W.R. 442.

4. The result is that the order of the Court below is affirmed and this appeal dismissed with costs. We assess the hearing fee at 10 (ten) gold mohurs.

5. We may add that a preliminary objection was taken to the competency of this appeal. This contention was overruled as unfounded, because the order of the Court below was obviously made in execution proceedings and the case must, therefore, be treated as covered by Section 47 read with Section 51 of the Code or 1908.


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