1. This is a Rule calling upon the opposite party to show cause why the order of the Munsif disallowing an application under Order XXI, Rule 97, Civil Procedure Code, made by the petitioners before him should not be set aside.
2. The circumstances of the case are as follows:
In 1911 the petitioners brought a suit against Nawab Salimulla of Dacca for recovery of possession of certain lands. The suit was dismissed by the Court of first instance in 1912 and the decree of that Court was affirmed by the Subordinate Judge on the 28th February 1914. There was a second appeal to this Court by the petitioner. Pending the second appeal, Nawab Salimulla died and his son Nawab Habibulla and the other heirs of Nawab Salimulla, represented by the Manager, Court of Wards, were substituted in his place. On the 19th July 1913 there was a remand by this Court and ultimately there was a decree for possession in favour of the plaintiff. An application for execution (by delivery of possession) was made in 1919 by the petitioner against Nawab Habibulla and the other heirs of Nawab Salimulla represented by the Manager of the Court of Wards. Nawab Habibulla appeared in the execution proceedings as mutwalli of a wakf estate and claimed the land as appertaining to that estate. It was pointed out in his petition of objection that neither his father nor he himself was a party to the suits in the capacity of mutwalli, that the decree was not binding upon him as mutwalli and that the execution, therefore, could not proceed against him. These objections were rejected by the Court on the 23rd December 1919. An officer of the Court then went to deliver possession of the property to the petitioner, but he was obstructed by the Nawab in delivering possession. An application thereupon was made under Order XXI, Rule 97, but the learned Munsif, as stated above, disallowed the application.
3. There is no doubt that Nawab Habibulla and before him his father, Nawab Salimulla, fought out the suit in their personal capacity and the objection that the land belonged to the estate held by him as mutwalli was not raised in the suit and was only set up in the execution proceedings. The learned Munsif disallowed the petitioners' application under Order XXI, Rule 97, on the ground that the Nawab had two different capacities and that the decree passed against him in his personal capacity did not debar him from offering obstruction to the delivery of possession in his capacity as mutwali.
4. The learned Pleader who appears for the opposite party relies upon the case of Upendra Nath v. Kusum Kumari Dasi 27 Ind. Cas. 328 : 42 C. 440 : 20 C.L.J. 485 : 19 C.W.N. 520 in support of the view taken by the Court below. It is unnecessary, however, to consider this question. It appears that Nawab Habibulla in his capacity as mutwalli raised the very same objection as is now raised by him to the application for execution and that was disallowed by the Court on the 23rd December 1919. That order is binding upon the Nawab, on the same principle as an interlocutory judgment in a suit is binding upon the parties in the subsequent stages of a suit. That being go, the learned Munsif ought not to have allowed the opposite party to raise the very same objection which was disallowed by his order of the 23rd December 1919.
5. The order complained of must, therefore, be set aside and the case sent back to the Court below in order that possession may be delivered in execution proceedings.
6. The petitioner is allowed to amend the petition by striking out the description of Nawab Habibulla, namely the words 'Ward of Court being represented by Manager, Court of Wards, Mr. H.C.F. Meyer.'
7. The petitioner is entitled to costs, one gold mohur.
8. The second part of the Rule, in so far as it relates to the order calling upon the opposite party to show cause why he should not be proceeded against under Section 195 of the Criminal Procedure Code, is not pressed by the petitioner and is discharged.