Shaikh Nazir Hussain vs Mohamad Ejaz Hussain

Coutts, J.—This is an application in revision arising out of an execution matter. It appears that Ejaz Hussain obtained a decree against Nazir Hussain. He filed an application to execute his decree against certain property in possession of the judgment-debtor, Nazir Hussain. Nazir objected that the property was wakf property.

This objection was allowed by the Court of first instance but on appeal to the District Judge that order has been set aside and execution has been ordered to proceed against the property in respect of which the objection was made.

The application made by the judgment-debtor to the Munsif, that the property which had been attached was wakf property, was headed as being an application under Sections 47 and 151 of the Civil Procedure Code. It is contended, however, that the application was not one u/s 47, C. P. C. but was an application under Order 21, Rule 58, and that consequently no appeal lay to the District Judge and the order passed by him is without jurisdiction.

The only question for consideration now is whether the application is one u/s 57, C. P. C. or one under Order 21, Rule 58. To my mind there can be no doubt that the application was in fact one under Order 21, Rules 58; and, if authority be needed in support of this view it is afforded by the decisions in the cases of Kartick Chandra Ghose Vs. Ashutosh Dhara, and Upendra Nath Kalamuri Vs. Kusum Kumari Dasi, . The contention of the petitioner that no appeal lay to the District Judge must, therefore, prevail.

The order of the learned District Judge is without jurisdiction and must be set aside. I would accordingly allow this application and set aside his order. There will be no order as to costs.

Das, J.

I agree.