(1.) The question at issue in these two appeals is whether the executing Court was right in appointing a receiver to take possession of the properties of the wakf estate in execution of a decree for money passed against the mutawalli personally and two other judgment-debtors.
(2.) The decree in question was obtained in Rent Suit No. 17 of 1933 for a sum of Rs. 2,048 and odd. The present execution case was commenced on 10-5-1940. After several unsuccessful attempts to realise the money the decree-holder applied to the executing Court for attachment of the annuities which were admittedly payable to the mutawalli from the income of the wakf estate. The application was allowed and on 18th of March 1944 the executing Court passed an order attaching the properties payable to the mutawalli. It appears that proceedings were taken at the instance of the judgment-debtors under Order 21, Rr. 63A and 63B, Civil P. C., and since there was default on the part of the garnishee to comply with the terms of the notice, the Court directed that execution should issue against the garnishee. On 13-6-1947 the decree-holder applied for appointing a receiver. The prayer was allowed; but an appeal was taken against the order by the judgment-debtors to the District Judge. The appellate Court dismissed the appeal and affirmed the order of the Subordinate Judge appointing a receiver.
(3.) On behalf of the judgment-debtors, the argument was stressed by Mr. Rajkishore Prasad that the executing Court had no authority to appoint a receiver for the wakf properties merely to collect the annuities payable to the mutawalli. The point was taken that the decree in question was passed not against the wakf estate but the decree was, a money decree granted against the mutawalli in his personal capacity and not as a mutawalli representing the wakf estate. In support of his contention counsel referred to the decision reported in -- 'Shah Mahomed Naim Ata v. Mahomed Shamsuddin', AIR 1927 Oudh 113 (A), wherein it was held that the income of the wakf property cannot be attached in execution of a simple money decree against the Sajjadanashin. I think that the argument advanced by Mr. Rajkishore Prasad is not valid. It is true that the decree in the present case is a money decree passed against the mutawalli in his personal capacity but it is not disputed that annuity is payable to the mutawalli out of the income of the wakf estate and it is also not disputed that annuity can be lawfully attached in execution of the money decree against the mutawalli. In fact there is an order passed in the execution case attaching annuities on 18-3-1944 and an appeal was taken by the judgment-debtors against this order to the District Judge, but the appeal was dismissed on 13-9-1944. After the order of attachment was passed the decree-holder took proceedings under Order 21, Rules 63A and 63B, against the garnishee. It should be noticed that the judgment-debtor mutawalli in the present case is acting in two capacities. The decree was passed against him in his personal capacity for certain money due to the decree-holder but the mutawalli is also a garnishee since in such capacity he pays the annuity out of the profits of the wakf estate. The effect of the proceeding under Order 21, Rule 63B, is that the execution of the decree is taken out against the garnishee as though the order of the Court is a decree against him. In view of the provisions enacted in Order 21, Rules 63A and 63B, it is manifest that the order of the executing Court has the effect of a decree against the mutawalli in his representative capacity on behalf of the wakf estate. Since the mutawalli in such capacity has not complied with the order of the Court it is clear that a receiver can be law-fully appointed for taking possession of the wakf estate and for realising the annuity payable out of the profits of that estate. The present case is in truth governed by the ratio decidendi of -- 'Asad Reza v. Wahidunnissa Begum', AIR 1920 Cal 724 (B), in which it was stated that as a trust property cannot be sold in execution of a decree, the only method by which a judgment-debtor may be compelled to satisfy the claim of the execution creditor is by the appointment of a receiver. To the same effect is the decision of the Privy Council in -- 'Niladri Sahu v. Chaturbhuj Das', AIR 1926 PC 112 (C), in which a decree was ordered for payment of certain amount by the mahant personally, and, upon his failure to pay, a receiver was ordered to be appointed to realise in discharge of the mortgage debt the beneficial interest of the mahant in the endowed property, subject to an allowance for his maintenance.