KOTHA CHINA SURYANARAYANA Vs. MOHAMMAD AMEER HUNZA

JUDGEMENT

(1.) The lower Court has dismissed the petitions of the decree-holder in E.P. No. 18 of 1963 and 24 of 1963 filed in Small Cause Suits No. 317 of 1961 and 13 of 1962 against the Mutawalli of a service mam on the ground that the waqf property is not liable to attachment and sale in execution of a personal decree.

(2.) So far as this proposition is concerned, there is no controversy but the lower Court relying on Para 194 of Mullah's Principles of Mohammedan Law (14th Edition) has held that the rents and profits therefrom cannot be seized in execution. It is this portion ot the judgment that is challenged in this revision petition. The learned Counsel for the petitioner contends that though the pro postion has been stated by a learned commentator of Mohammedan Law in Para 194, there is no authority to substantiate it.

(3.) On the other hand the very case on which the learned, commentator has relied viz. Bishan Chand Basawat v. Nadir Hossein warrants an inference that if there was a margin of profits in excess of the requirements for the performance of service, that profit might possibly have been attached, that margin ot profit might be coming to Mutawalli after performance of the religious duties and also meeting his own personal require-ments and subsistence. The question therefore his to be gone into by the lower court viz., whether any such margin of profit exists in this particular casev which is liable to attachment. I, therefore, allow the C.R.P. remanding the case to the lower court for disposal on merits after enquiry on the lines indicated above. There will be no order as to costs.