Bhado Mander vs Khodabux and Others

Jwala Prasad, J.—This is an application against the order of the Munsif of Bhagalpur, dated 28th January, 1929, in a claim case under Order XXI, Rule 58, in a litigation between the petitioner and Shaikh Khodabux and Shaikh Hassan described as mutwallis of the mosque at Ishakchak. Bhado Mander obtained a decree for possession declaring his occupancy right in the land in suit which appertained to the mosque as well as for costs. He obtained delivery of possession in execution of the decree, and has applied for execution for the realization of the costs awarded to him. He has sought to attach the rents due to the mosque from himself. The claimants, the opposite party, object to the attachment of the rents claiming the same to belong to and payable to them, on the ground that they are the mutwallis of the mosque not Shaikh Khodabux and Shaikh Hassan the judgment-debtor. The Court below has upheld their contention and has allowed the claim. The ground urged by the Court below is that "the decree does not show that the mosque is the judgment-debtor or even that the above named persons are judgment-debtors in the capacity of the manager of the mosque."

The Court below has misread the decree in question. Therein Shaikh Khodabux and Shaik Hassan are described as mutwallis of the mosque. The Court below has missed that in the judgments of the case both of the trial and the Appellate Courts (Exs. A and A 1); the case was tried against Khodabux and Shaikh Hassan as managers of the mosque, they being admitted to be so by the parties to the suit.

The Court below, however, says that it could not go behind the decree and interpret it in the light of the judgment. Here also the Court below is wrong. The Executing Court can interpret a decree by referring to judgments as well as pleadings in the case: vide Baij Nath Sahay v. Gajadhar Prosad 58 Ind. Cas. 276 : 1 P.L.T. 471.

Therefore, the order of the learned Munsif is based upon a misapprehension of facts and law.

The learned Advocate on behalf of the opposite party contended that there was no direction in the decree that the mosque property would be liable. I do not think this is necessary. The mosque was represented in the litigation which terminated in the decree in question through its mutwallis Shaikh Khodabux and Shaikh Hassan.

It is also contended that the order of the Munsif is final and is not capable of revision, and that the only remedy open to the petitioner is to institute a suit. Reference is made to Rule 63, Order XXI, Civil Procedure Code. That rule does not apply to the present case where the order of the Munsif is passed upon a misreading of the decree and upon his erroneous view that the judgment of the case could not be referred to for the purpose of interpreting the decree. Admittedly the rent sought to be attached by the decree holder in his hands belongs to the mosque, and the judgment-debtors being the mutwallis have a right to realize the same as a debt due to the mosque. The decree holder has a right to attach the same in execution of his decree. The order of the Court below is without jurisdiction : vide Nainu v. Bhupendra Nath Rakhit 60 Ind. Cas. 616.

The result is that the order of the Court below is set aside and the claim of the opposite party is rejected. The attachment is not released and will continue and the execution will also continue.

The application is allowed with costs, hearing fee one gold mohur.