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Rustam Khan J.D v. Ahmad Bux And Others
Structured Summary of the Opinion
Factual and Procedural Background
(Narrative drawn exclusively from the provided opinion.)
This special appeal was filed by the judgment-debtor, Rustam Khan, against the judgment of N.U. Beg, J., dated 4-2-1960, which dismissed Execution First Appeal No. 346 of 1955. The underlying dispute arose from a suit instituted under Section 92 of the Code of Civil Procedure (C.P.C.) by the respondents (decree-holders) in the court of the District Judge, Agra. The District Judge initially dismissed that suit.
First Appeal No. 154 of 1947 was then brought in the High Court and was allowed by Agarwala and Asthana, JJ., on 20-4-1953. The operative portion of that judgment set aside the decree below, decreed the plaintiffs' suit with costs, removed the defendants from the office of mutawallis, directed that the Sunni Central Waqf Board be asked to appoint suitable mutawallis, and provided for a scheme for management of the waqf property.
The property in dispute was a plot described as Plot No. 150 (formerly No. 98), a graveyard in village Rasulpur dedicated for the use of the Naddaf community. The appellant, Rustam Khan, was the mutawalli. The plaint alleged that the defendants-appellants had been appropriating the graveyard by constructing houses and a bangle factory and were mismanaging the waqf property; the plaintiffs sought removal of the current mutawallis, appointment of new mutawallis by the Sunni Central Waqf Board, a scheme for management, and vesting of the trust property in the newly appointed mutawallis.
After the High Court decree, the Sunni Central Waqf Board appointed new mutawallis who sought to execute the decree. In the execution proceedings the judgment-debtor (appellant) objected that the decree was not executable on the ground that possession had not been claimed or expressly awarded in the Section 92 suit, and relied on an earlier execution order dated 11-8-1953 which purported to allow that objection. The District Judge formulated two questions for decision: (1) whether the mutawallis are entitled to take out execution for possession; and (2) how the order dated 11-8-1963 affects the maintainability of the present application. The District Judge decided both questions against the judgment-debtor, prompting the Execution First Appeal No. 346 of 1955 before Beg, J., and ultimately this special appeal.
Legal Issues Presented
- Whether the mutawallis appointed by the Sunni Central Waqf Board are entitled to take out execution for possession of the waqf property following the High Court decree in a suit under Section 92, C.P.C.
- How the earlier execution order dated 11-8-1953 (referred to in the opinion) and an order referenced as dated 11-8-1963 affect the maintainability of the application for possession in execution.
- Whether, under Section 92, C.P.C. as it stood prior to the insertion of clause (cc) by Central Act No. 66 of 1956, the Court had jurisdiction in the same proceeding to direct delivery of possession to a newly appointed trustee (i.e., whether removal of a trustee necessarily included dispossession without a fresh suit).
Arguments of the Parties
Appellant's Arguments
- The decree of this Court (First Appeal No. 154 of 1947) contains no direction for delivery of possession; therefore, the execution application seeking possession should have been disallowed and the execution court erred in granting possession.
- As Section 92, C.P.C. stood at the relevant time (before amendment by Central Act No. 66 of 1956), a court could not pass a decree for dispossession of a delinquent mutawalli or trustee; the court could only terminate the status of the mutawalli, leaving the newly appointed trustees to bring a fresh suit for possession.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments. (Counsel for the respondents are named in the record, but their specific contentions are not detailed in the provided text.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| B. Saliendra Nath Sanyal v. Shib Dass Gangoli, A.I.R. 1944 Oudh 289 | Held that in execution proceedings possession can be given to new trustees appointed in a suit under Section 92, C.P.C., and that relief for removal of previous trustees can be given effect to independently of the constitution embodied in the decree. | The Court stated it was in respectful agreement with this decision and used it to support the view that the power to direct delivery of possession to new trustees existed prior to the 1956 amendment (i.e., that the power was implied and not a new legislative grant). |
| Matte Atchutaratna Rao v. Solasa Bapanaya, A.I.R. 1942 Mad. 748 | Relied upon by the judgment-debtor-appellant at the High Court level; in that case Abdul Rahman, J. relied on a passage from Baya C. Vaithilinga Mudaliar (below) concerning the distinction between scheme/declaratory parts of a decree. | The Court considered the decision but concluded that, given the decree before it (which expressly provided for a scheme and appointment of mutawallis), the Madras decision was of no assistance to the appellant's case. |
| Baya C. Vaithilinga Mudaliar v. Sri Thyagarajaswami Devastnama, Tiruvarur, I.L.R. 59 Mad. 751 | Quoted passage: "The true distinction is, not whether a provision in a scheme decree is directory or declaratory, but whether the provision sought to be executed, is or is not in what is really the scheme part of the decree." | The passage was cited via the Madras decision; the Court applied the principle to observe that the prayer for dispossession in the execution application was within the scheme part of the decree before it and therefore capable of execution. |
Court's Reasoning and Analysis
The Court first reviewed the operative language of the High Court decree dated 20-4-1953 (First Appeal No. 154 of 1947), noting that the decree expressly: (a) removed the defendants from the office of mutawallis, (b) directed the Sunni Central Waqf Board to appoint suitable mutawallis, and (c) provided that a scheme would be set up for better and proper management of the waqf property. The Court accepted Beg, J.'s view that the process of replacing mutawallis necessarily involved removal of the former mutawallis and vesting of the property in the newly appointed mutawallis.
Addressing the appellant's first submission (that the decree did not direct delivery of possession), the Court held that the decree was "comprehensive enough" to include both removal and vesting of the property in the new mutawallis. Consequently, the first submission was rejected.
On the second submission (that prior to the 1956 amendment Section 92 did not allow a court to order dispossession in the same proceeding), the Court examined the later legislative enactment — Central Act No. 66 of 1956 — which inserted clause (cc) into Section 92(1), expressly empowering a court to direct a removed trustee to deliver possession of trust property to the person entitled. The Court quoted the Select Committee Report explaining that clause (cc) was intended to remove uncertainty and avoid fresh suits by expressly empowering the court to order restoration of possession to a new trustee.
Critically, the Court analyzed the legislative history and the object of clause (cc) and concluded that the clause had been added "by way of abundant caution" to make explicit what already appeared to be implied. The Court thus reasoned that the insertion did not necessarily create a new power but clarified an existing one. In support, the Court cited the Oudh Division Bench decision in B. Saliendra Nath Sanyal v. Shib Dass Gangoli, which held that in execution proceedings possession can be delivered to new trustees under a Section 92 decree; the Court expressed respectful agreement with that view.
The Court examined the Madras decisions (Matte Atchutaratna Rao and Baya C. Vaithilinga Mudaliar) and the quoted distinction regarding scheme parts of a decree, but found that those authorities did not assist the appellant because, in the present case, the decree explicitly set up a scheme and directed appointment of new mutawallis — thus placing the relief for dispossession within the scheme part of the decree and therefore capable of execution.
Having considered the decree text, the legislative amendment and its stated purpose, and the precedents, the Court concluded that the appellant's contentions must fail: the decree authorized vesting and delivery of possession to the newly appointed mutawallis, and the pre-1956 law already supported such relief as implied in the decree.
Holding and Implications
APPEAL DISMISSED.
Direct effect on the parties:
- The dismissal upholds the decision of Beg, J., and affirms that the mutawallis appointed by the Sunni Central Waqf Board were entitled to put the High Court decree into execution, including delivery of possession of the waqf property.
- The appellant's objections that the decree did not authorize dispossession and that courts lacked power before the 1956 amendment were rejected; costs were awarded against the appellant.
Broader implications (as stated by the Court in the opinion):
- The Court held that the insertion of clause (cc) into Section 92(1) by Central Act No. 66 of 1956 was intended to make express what appeared to have been implied; it was not necessarily intended to introduce a new or additional power. In other words, the Court treated the 1956 amendment as declaratory of an existing jurisdiction rather than solely as constitutive of a new power.
- The opinion does not purport to lay down a novel legal principle beyond adhering to and applying prior decisions; the Court stated its respectful agreement with an earlier Oudh decision on execution relief under Section 92.
Appeal dismissed with costs.
Jagdish Sahai, J.:— This special appeal is directed against the judgment of N.U Beg, J., dated 4-2-1960, dismissing Execution First Appeal No. 346 of 1955 filed by the judgment-debtor Rustam Khan.
2. Rustam Khan, the judgment-debtor-appellant was a defendant in a suit filed under Sec. 92, C.P.C by the respondents-decree-holders in the court of the District Judge, Agra. The learned District Judge dismissed the suit. Against this decree First Appeal No. 154 of 1947 was filed in this Court which was allowed by Agarwala and Asthana, JJ. on 20-4-1953. The operative portion of the judgment of the learned Judges reads:
“The result, therefore, is that we allow the appeal, set aside the decree of the Court below and decree the plaintiffs' suit with costs in both the courts. The defendants are removed from the office of mutawallis. The Sunni Central Waqf Board will be asked to appoint suitable mutawalli or mutawallis for the waqf. A scheme will be set up for better and proper management of the waqf property. The plaintiffs will have their costs from the defendants.”
3. To use the words of Agarwala and Asthana, JJ., “the dispute is about a plot, No. 150, which was at one time numbered as 98, measuring 1 bigha and 5 biswas, in village Rasulpur.” According to the plaintiffs, “this plot was a grave-yard dedicated for the purpose of burying the dead of the Naddaf community in village Rasulpur by its zamindar…”. The appellant was the mutawalli of the Waqf of the grove-yard. The allegation in the plaint filed in the suit under Sec. 92, C.P.C was that the defendants-appellants had started appropriating the grove-yard for their own purpose by building their own houses and a bangle factory thereon and that they were mismanaging the Waqf property with the result that they were not fit to remain the mutawallis thereof. The plaintiffs prayed for the removal of the defendants from the office of the mutwallis, for the Sunni Central Waqf Board to be asked to prepare a scheme for the management of the waqf property, and for the vesting of the trust property in the newly appointed mutwallis. When executing of the decree was taken out, the judgment-debtor-appellant, inter alia, objected that the decree was not executable. This objection was founded upon the allegation that the relief for possession was not claimed in the suit under Sec. 92, C.P.C nor was it allowed by the High Court and that an earlier order passed in execution proceeding by the District Judge, i.e, dated 11-8-1953 purported to allow this objection. It may be mentioned that after the decree was passed by this Court in First Appeal No. 154 of 1947, the Sunni Central Waqf Board appointed mutwallis and it is these mutawallis who have put the decree in execution. The learned District Judge posed the following two questions for decision:
1. Are the mutawallis entitled to take out execution for possession?
2. How does the order dated 11-8-1963 affect the maintainability of the present application?”
4. The learned District Judge decided both the points against the judgment-debtor-appellant and he (judgment-debtor), therefore, filed the Execution First Appeal No. 346 of 1955 in this Court. The grounds taken in the Execution First Appeal, were: firstly, “there being no direction in the decree of the Hon'ble High Court (which is being executed) for possession of the properties, the relief of possession in the execution application should have been disallowed” and secondly, that “the execution court cannot go behind the decree and so cannot give the relief of possession, neither prayed for in the suit, nor granted by the High Court; possession cannot be given to the respondents in execution till the decree under execution is amended.” One of the grounds taken was that the order of the execution court dated 11-8-1953 operated as a bar of res judicata to the maintainability of the prayer for possession being delivered to the mutawallis. It appears from the judgment of Beg, J. that the only ground urged before him was “that there was no direction in the decree for delivery of possession.” Beg, J., while dealing with the submission observed:
“A perusal of the decree shows that there was a provision for removal of the existing Mutawallis and for the vesting of the property in a new one. The process of removal of the previous mutawallis and replacement by a fresh ones involves the removal of the former set and their substitution by a new set of mutawallis. The objection appears to have been made only with a view to prolong the matter.”
5. It does not appear that any other submission was made before Beg, J.
6. We have heard Sarvasri S.B.L Gour and B.R Avasdry for the appellant and Dr. Asthana and Sri N.B Asthana for the respondents. The following two submissions have been made on behalf of the appellant.
(1) That on a proper consideration of the decree passed by this Court in First Appeal No. 154 of 1947 dated 20-4-1953, it must beheld that the appellant cannot be dispossessed from the Waqf property and the mutawallis appointed by the Sunni Central Waqf Board cannot take possession of the same and
(2) that under the provisions of Sec. 92, C.P.C as they stood at the relevant time, before the U.P or the Central amendment was made no decree for dispossession of a delinquent mutawalli or trustee could be passed, and all that the Court could do was to terminate the status of the mutawalli, leaving it to the newly appointed trustees to file a suit in a court of law for possession over the waqf property.
7. We have carefully perused the judgment of Agarwala and Asthana, JJ., dated 20-4-1953 and we find ourselves in complete agreement with Beg, J. that the decree passed by them is comprehensive enough to include not only the removal of the existing judgment-debtor-appellant and other mutawallis but for the vesting of the property in the new mutawallis appointed by the Sunni Central Waqf Board. The first submission, therefore, in our opinion is not well founded and is rejected.
8. So far as the second submission is concerned, we have found it difficult to accept the argument advanced on behalf of the judgment-debtor appellant that the word “removal” does not include in its ambit “dis-possession.” It is true that by means of Central Act No. 66 of 1956, in sub-Sec. (1) of Sec. 92, after Cl. (c), the following clause has been inserted, namely:—
“(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property.”
9. It is contended on behalf of the appellant that it is a new power given to the Court and before 1956, when this provision was inserted in Sec. 92 of the Code of Civil Procedure, the Courts had no jurisdiction to dispossess a trustee whom they had removed from the trust property and for that purposes a fresh suit had to be filed. We have seen the aims and objects of the original Bill of Act 66 of 1956. Cl. 10 reads:
“10. In sub-Sec. (1) of Sec. 92 of the principal Act, after Cl. (c), the following clause shall be inserted, namely:—
“(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to a new trustee”.
10. The reason why Cl. 10 was enacted is given in the Select Committee Report which reads:—
“Sec. 92 relates to suits with regard to religious and charitable trusts. There is uncertainty at present as to whether a court can in the same proceeding-direct the restoration of possession to the new trustee of the trust properties from the trustee who is removed. In order to avoid fresh suits for such purposes, it is desirable to empower the court expressly to pass a decree directing a trustee who has been removed to deliver possession of the trust property to a new trustee.”
11. Even though the aims and objects of the provisions of the Bill cannot be looked into for interpreting an Act, they have been considered to be relevant for finding out reasons which prompted the amendment. It is obvious that Cl. ‘(cc)’ was added to Sec. 92(1), C.P.C by way of abundant caution in order to make express what appears to have been implied. The object was not to introduce a new provision or to enlarge the existing powers of a court administering the provisions of Sec. 92, C.P.C In our judgment, therefore, the fact that the Legislature thought it fit to introduce Cl. (cc) in Sec. 92(1), C.P.C does not necessarily mean that it was a new or additional power which did not exist from before. In B. Saliendra Nath Sanyal v. Shib Dass Gangoli A.I.R 1944 Oudh 289. it was held by a Division Bench of the Oudh Chief Court that in execution proceedings possession can be given to the new trustees appointed in a suit under Sec. 92, C.P.C and that the relief for removal of previous trustees can be given effect to independent of the constitution framed and embodied in the decree. We are in respectful agreement with this view.
12. Reliance was placed on Matte Atchutaratna Rao v. Solasa Bapanaya A.I.R 1942 Mad. 748. on behalf of the judgment-debtor-appellant. Abdul Rahman, J., who decided that case, relied upon the following passage from the judgment of Venkatasubba Rao, J. in Baya C. Vaithilinga Mudaliar v. Sri Thyagarajaswami Devastnama, Tiruvarur I.L.R 59 Mad. 751.:
“The true distinction is, not whether a provision in a scheme decree is directory or declaratory, but whether the provision sought to be executed, is or is not in what is really the scheme part of the decree.”
13. In view of the decree before us, it cannot be said that the prayer in the execution application for dispossession of the judgment-debtor-appellant and other judgment-debtors is really outside the scheme part of the decree. We have already said earlier that one of the reliefs claimed in the plaint in the suit under Sec. 92, C.P.C was a scheme for the management of the waqf property with the mutawallis. All the reliefs claimed in the plaint were granted by the learned Judges who decided First Appeal No. 154 of 1947. They decreed the plaintiff's suit with costs without dismissing it in any respect. They expressly said that a scheme will be set up for better and proper management of the waqf property” and the Sunni Central Waqf Board will be asked to appoint suitable mutawallis for the waqf.”
14. In the circumstances of the cases, the Madras decision is of no assistance to the appellant's case.
15. Having given the matter our anxious consideration, we are of the opinion that the second submission of the learned counsel also fails.
16. We, therefore, dismiss the appeal with costs.
Appeal dismissed.
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