A suit filed by a Mutawalli of a mosque is governed by Order 22 Rule 10 of the Code of Civil Procedure, 1908, and not Order 22 Rule 3. The order of the Assistant Charity Commissioner registering the mosque as a public trust is saved and remains unaffected by virtue of clause (a) of Sub-Section (3) of Section 86 of the Bombay Public Trusts Act, 1950.

GINWALA, J. :- This appeal under the Letters Patent has been filed against the judgement of the learned single Judge (Mr. Justice Nain) in Appeal No. 20 of 1967, allowing the said appeal and setting aside the order passed by the learned District Judge on 13th April 1967 in Miscellanous Judicial Case No. 27 of 1965. The facts leading to the present appeal may shortly be stated as follows.

2. At Akot in district Akola, there was a mosque popularly known as 'Masjid Nuran' or Nurunbiki Masjid. It appears that some immoveable property in the shop of open plot and built houses had been dedicated to this mosque. One Awaliyaba, who purported to be the Mutawalli of the mosque, brought a suit being Civil Suit No. 279-A of 1951 in the Court of Civil Judge at Akot against Ramchandra Narayan for possession of a piece of land, demarcated by letters ABCDEFJLM in the map accompanying the plaint on the allegation that this piece of land belonged and was in possession of the mosque and was in wrongful possession of the said Ramchandra, Ramchandra raised several contentions in his defence. The learned Civil Judge decided the suit on 17th November 1952 and held that the plaintiff in the suit was entitled to the possession of a site measuring 78 feet x 68 feet from out of the site which was the subject matter of the suit. The learned Civil Judge dismissed the suit with regard to rest of the site. Being aggrieved by this decision of the learned Civil Judge in the suit, Awaliyabi preferred an appeal before the learned District Judge at Akola which was numbered as Appeal No. 79-A of 1953 Ramchandra filed cross-objections in the appeal. When the appeal was pending before the learned District Judge, Ramchandra contended that the appeal could not be proceeded with because, even according to the plaintiff, i.e. Awaliyabi, the mosque was a public trust and unless the said public trust was registered as required by the provisions of the M.P. Public trusts Act. 1951, the appeal could not be entertained. This objection on the part of Ramchandra was upheld by the then learned District Judge, who on 26th August 1955 passed an order in the following terms :-

"In view of the recent decision in Jiwan Bodh Deity v. Kesheorao (C.R. No. 188 of 1954, D/-11-2-1955 : 1955 Nag LJ (Notes) No. 277, p. 87), this appeal is 'filed' and be consigned to the Record Room. After the trust is registered the appellant shall have the liberty to apply for proceeding with the appeal".

In pursuance of this order, therefore, the record of the appeal was consigned to the Record Room.

3. On 30th April 1965 one Abdul Majid son of Abdul Rahman presented an application to the learned District Judge, purporting to be a Managing Trustee of the said mosque. After giving the history of the litigation upto the order which was passed by the learned District Judge on 26th August 1955, Abdul Majid submitted that Awaliyabi expired on 24th May 1958 and till her death the mosque was not registered as a public trust. He further submitted that later on the mosque came to be registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950 and certificate of registration had been issued to him by the Assistant Charity Commissioner, Akola Region, Akala on 5th November 1963 and hence he had become the managing trustee of the said mosque and was entitled to present the application on behalf of the said trust, Abdul Majid further contended that since the mosque had been registered as public trust, it was entitled to carry on the appeal which had been consigned to the Record Room for want of registration under the above said order of the learned District Judge. By this application, therefore, Abdul Majid prayed that the record of the appeal should be sent for from the Record Boom and he should be substituted as appellant in place of Awaliyabi and the appeal be proceeded with. Ramchandra, who was respondent in appeal, resisted this application by filing written statement on 25th Augus