JAGDISH SAHAI, J. - (1.) 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 S. 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 Bind in this Court which was allowed by Agarwala and Asthana, JJ. on 20-4-1958. The operative portion of the judgment of the learned Judge 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 Waqi 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." 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 graveyard. The allegation in the plaint filed in the suit under S. 92, C.P.C. was that the defendants-appellants had started appropriating the grave-yard for their own purpose by building their own houses and a bangle factory thereon and that they were mismanaging the Wakf properly 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 mutawallis, 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 mutawalli. When execution 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 Section 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 mutawallis 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 11-8-1953 affect the maintainability of the present application ?" 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 Honble 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 lo 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." It does not appear that any other submission was made before Beg, J.
(3.) WE have heard Sarvasri S.B.L. Gour and B.R. Avasthy 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 be held 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 Section 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. ;