Skip to content


Habibar Rahman Vs. Saidannessa Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in77Ind.Cas.907
AppellantHabibar Rahman
RespondentSaidannessa Bibi and ors.
Cases Referred and Parasurama Ayyar v. Sesheir
Excerpt:
muhammadan law - wakf--mutwalli--permission to lease--kazi, place of, whether taken by district judge--appeal, whether lies. - .....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 appeasable under the civil procedure code nor is it me de 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. abdut kabeer 3 c.w.n. 158, in re halima khatun 7 ind. cas. 33 : 37 c. 870, atimannessa bibi v. abdul sabhau 32 ind. cas. 21 : 20 c.w.n. 113 : 43 c. 467 : 22 c.l.j. 577 that mutwallis may be authorised to execute leases of this description, by 1j.ie district judge, who, for this purpose, is competent to discharge the functions of a kazi under the muhammadan law. the nature of the proceedings was.....
Judgment:

1. This appeal is directed against an order trade by the District Judge in favour of two mutwallis of a Muhammadan wakf authorizing 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 appeasable under the Civil Procedure Code nor is it me de 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. Abdut Kabeer 3 C.W.N. 158, In re Halima Khatun 7 Ind. Cas. 33 : 37 C. 870, Atimannessa Bibi v. Abdul Sabhau 32 Ind. Cas. 21 : 20 C.W.N. 113 : 43 C. 467 : 22 C.L.J. 577 that mutwallis may be authorised to execute leases of this description, by 1j.ie District Judge, who, for this purpose, is competent to discharge the functions of a kazi under the Muhammadan Law. The nature of the proceedings was considered in Fakhrannessa Begam v. District Judge of the 24 Pargunnas 56 Ind. Cas. 475 : 24 C.W.N. 339 : 47 C. 592, 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 10 Ind. Cas. 879 : 36 M. 16 : 21 M.L.J. 613 : (1911) 2 M.W.N. 13 and Parasurama Ayyar v. Sesheir 27 M. 504. If, then, the proceeding is not a suit, the decision therein does not fall within the scope of a decree. It is 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.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //