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1922 Supreme(Cal) 156
CALCUTTA HIGH COURT
Mookerjee, J.
Habibar Rahaman - Appellant
Versus
Saidannessa Bibi & Anr. - Respondent
Decided On : 20-12-1922
The main legal point established in the judgment is that an order may not be appealable if it is not expressly made appealable by any provision in the Civil Procedure Code or any other statutory provision.
Headnote:
Appeal - Mahomedan Wakf - Competency of the appeal
Fact of the Case:
The appeal was against an order made by the District Judge in favor of two mutwallis of a Mahomedan wakf authorizing them to grant a lease of the wakf property. The appellant, another mutwalli, preferred an objection to the application but did not appear to support it, resulting in an ex parte order in favor of the respondents.
Finding of the Court:
The court found that the order was not a decree and therefore not appealable under the Civil Procedure Code. It was held that the order was not expressly made appealable under the CPC or any other law.
Issues: The main issue was the competency of the appeal, specifically whether the order was appealable under the Civil Procedure Code or any other statutory provision.
Ratio Decidendi: The court relied on previous cases and established that the nature of the proceedings, being governed by Section 141 of the Civil Procedure Code, did not make the order appealable. It was emphasized that the decision in such proceedings does not fall within the scope of a decree.
Final Decision: The appeal was dismissed with costs, and the preliminary objection regarding the competency of the appeal prevailed.
JUDGMENT
Mookerjee, J. - This appeal is directed against an order made by the District Judge in favour of two mutwallis of a Mahomedan wakf authorising them to grant a lease of the wakf property. The appellant, another mutwalli, preferred an objection to the application but did not appear to support it, with the result that the order in favour of the respondents was made ex parte on the 6th June, 1922.
2. A preliminary objection has been taken by the respondents to the competency of the appeal. It has been argued that the order is not a decree and consequently not appealable as such under the Civil Procedure Code. It has further been urged that the order is not one of those expressly made appealable under the CPC nor is it made appealable under any other law. We are of opinion that this contention is well-founded. It is well-settled in this Court Shama Churn Roy v. Abdul Kabeer (1898) 3 C.W.N. 158; In re Halimal Khatun (1910) 37 Cal. 870; Atimannessa Bibi v. Abdul Soban (1915) 43 Cal. 467, that mutwallis may be authorised to execute leases of this description, by the District Judge, who, for this purpose, is competent to discharge the functions of a Khazi under the Mahomedan law. The nature of the proceedings was considered in Fakrunnessa Begam v. District Judge of 24 Pergunnahs (1911) 36 Mad. 16, where it was pointed out that the proceeding is not a suit but merely a proceeding governed by Section 141 of the Civil Procedure Code. The fact that the provisions of the CPC regulate the proceedings does not make the order which may be passed therein appealable : Damodara Menon v. Kittappa Menon (1911) 36 Mad. 16 and Parasurama Ayyar v. Seshier (1903) 27 Mad. 504. If, then, the proceeding is not a suit, the decision therein does not fall within the scope of a decree. It is an an order an order which is not expressly made appealable by any provision in the CPC or by any other statutory provision. We accordingly hold that the order is not appealable and the preliminary objection must prevail.
3. The appeal is dismissed with costs, the hearing fee being assessed at one gold mohur which must be given to each set of respondents except the opposite party No. 4 for whom Babu Probode Kumar Das appears. His client is not entitled to any costs in this appeal. The costs will not be paid out of the estate.
