COMMISSIONER OF WAKFS Vs. MAHMUDA BIBI

JUDGEMENT

(1.) This is an application by the Commissioner of Wakfs, Bengal, who has been appointed under the Bengal Wakf Act (Bengal Act 13 of 1934). The application purports to be under Section 70 (4) of the said Act. It appears that two appeals are pending in this Court in which the question in controversy is as to the accuracy of the findings of the Subordinate Judge with regard to certain properties being wakf properties. In these two appeals by consent a receiver was appointed during the pendency of these two appeals. The application for appointment of a receiver was made on the 2 March, this year, a day after the Act in question came into force. The present application is for vacating the orders made by this Court on consent in those two appeals for the appointment of a receiver. By that order Mr. P.N. Tagore was appointed a receiver of rents, issues and profits of all the properties comprised in the Estate found to be the Wakf Estate of Prince Kamar Kader Mirza Bahadur excepting as regards premises No. 4, Kailassarak Road and certain other properties, the details of which it is not necessary to enter into. It appears that the application, as has already been stated, is one under Section 70 (4) of the Act. The questions which have to be considered with reference to the maintainability of this application really turn on the construction of the two sections of the Bengal Wakf Act, namely Sub-section 69 and 70. Section 69 is in these terms:

(2.) "No suit or proceeding by or against a Mutwalli as such in any Court shall be compromised without the sanction of the trying Court." Section 70 (1) enacts that notice must be given to the Commissioner of Wakfs in every suit or proceeding excepting certain suits for rent, etc., at the cost of the party instituting such proceedings. Section 70, Clause (4) enacts that in the absence of a notice under Sub-section (1) any decree or order passed in the suit or proceedings would be void if the Commissioner applies to the Court within one month of his knowledege. It is contended that the words "suit or proceedings" would include an "appeal" and as the proceedings for the appointment of the receiver were initiated in the appeal, it must be regarded as a suit or proceedings within the meaning of Section 69 or Section 70. we are unable to accede to this contention. The words suit or proceeding must be regarded in its ordinary sense and cannot be held to include appeal. A reference to Sub-section 11 and 15, Civil P. C., 1908, would show that a suit does not include an appeal. With reference to res judicata (S.13 of 1882) it has been held that a suit does not include an appeal, see Bharaselal Choudhury V/s. Sartchandra (1896) 23 Cal 415. See also Amarsangji Dungerji V/s. Dipsingji Jhala 1925 Bom 241, at p. 449. Our attention has been drawn by Mr. Suhrawardy to a decision of this Court to which I was a party, and the language used there is to the effect that an appeal is really a continuation of the suit. Something of that kind is also said in the decision of the case in Samed Sheikh V/s. Naba Gopal Ghose 1914 Cal 614. The decision to which I was a party is reported in Faizunnessa Bibi V/s. Gholam Rabbani (1935) 62 Cal 1132.

(3.) It is a decision of Faizunnessa Bibi V/s. Gholam Rabbani (4). The state of facts in those cases are entirely different and those cases are no authority for the proposition that the word suit must be taken to include an appeal. Besides, if one looks to the policy underlying the provisions of Sub-section 69 and 70 there can be no doubt that the legislature intended that the Commissioner of Wakfs can intervene where the suit or proceeding initiated is pending at the time when the provision of the Act regarding Commissioner of Wakfs came into force. Besides, it will be noticed under Section 83 (a) and (b) there are certain saving clauses. In our opinion Sub-section 83 (a) and 83 (b) furnish a complete answer to the contention of the applicant. The suit was instituted long before the promulgation of the Act of 1936, and any right or rights, which were acquired at the time of the institution of the suit or even after the passing of the decree which was long before the promulgation of the Act in 1936, cannot be affected by the provisions of the latter Act. It was open to the parties before the promulgation of the Act to settle their dispute in a suit by or against a Mutwalli without reference to the officer who had not come into existence then. That right cannot be said to have been taken away by anything which was done without any reference to or notice to the officer appointed long after. We are of opinion that Sub-section 83 (a) and 83 (b) are intended to cover a case of this kind. The word suit or proceeding in Section 70 (1) have the same meaning as the said words in Section 69.