Md. Muslim Javed vs Joynab Bibi

This Rule was obtained by the petitioner, against whom an order was passed by the court below, directing that the instant execution case do proceed against him as the legal representative of the judgment-debtor, who was the mutwalli of a wakf estate. It was found by the learned Judge in the court below that it was not disputed that the execution case was liable to proceed only against the mutawalli of the wakf estate. The original judgment debtor, who was the admitted mutwalli of the said wakf estate at the time, died and, in his place, the present petitioner was sought to be proceeded against as his legal representative.

The learned Judge in the court below held that the petitioner was the legal representative of the mutwalli upon the view that he was, on the evidence, intermeddling with the properties of the wakf estate, and, accordingly, he would come as the legal representative of the deceased mutwalli under Sec. 2(11) of the Code Civil Procedure.

In our view, the learned Judge misapplied the said section in coming to his above conclusion. It was overlooked by him that the decree here was against the deceased mutwalli or against the deceased judgment-debtor in his representative capacity and that, accordingly, the last part of the definition of legal representative in Section 2(11) of the Code would apply. That part makes no reference to any intermeddler and the intermeddler is referred to only in the first part, which will have no application here. Instead, therefore, of applying the proper part, namely, the last part of the said section, the learned Judge in the court below applied the earlier part, which had no application, and, accordingly, he acted illegally and with material irregularity in the exercise of his jurisdiction in directing execution to proceed against the petitioner as the legal representative of the deceased mutwalli in his representative capacity. We would, accordingly, make this Rule absolute and set aside the order, complained against, which directed the execution case to proceed against the petitioner. The decree-holder will, however, be at liberty to take such steps in the matter as may be open to him under the law.

There will be no order for costs in this Rule.