Tajammul Husain vs Nath Mal Das and Others

Mahmood, J.—In the appeal before us, the learned pleader for the appellants has laid the greatest stress on the contention that the suit was not maintainable by the plaintiff, as he was the judgment-debtor of the decrees in execution whereof the property was attached. For this contention, Section 244 of the CPC is relied upon, on the ground that the Courts of Revenue, in those matters of procedure on which the Rent Act is silent, have been held by a Full Bench of this Court in Madho Prahash Singh v. Murli Manohar ILR 5 All. 406 to be governed by the principles of the Civil Procedure Code.

We are, however, of opinion that the suit was maintainable. The plaintiff in this suit is not suing in his own right, but in his capacity as custodian, trustee, or manager of the wakj property, and he must therefore be taken to fill a character separate from that in which the decrees were passed against him by the Revenue Court. Section 244 of the CPC does not, therefore, bar the present suit, and the view which we have taken is supported by the principle laid down in Shankar Dial v. Amir Haidar ILR 2 All. 752 and in the cases there cited. The legal objection therefore has no force.

The Court proceeded to consider the findings of the Court of First Instance upon the merits, and, holding that no grounds for disturbing these findings had been established, dismissed the appeal with costs.