P L D 1952 Dacca 72 (PLP)

The facts are as follows : On the 28th May, 1941, Sudhangshu Kumar Mitra, defendant No. 1, filed a suit being Rent Suit No. 1286 of 1941 against Abdul Rahman, Mutwalli to the Wakf Estate of Felagazi Sawdagar, and obtained an ex parte decree on the 28th July, 1941. The said rent decree was put into execution in Rent Execution Case No. 590 of 1941 and the rent land was ordered to be put up for sale on the 27th Feb ruary, 1942. The present plaintiff Azizar Rahman, Mutwalli of the Wakf Estate, on learning about the date of sale filed the suit and prayed for stay of the execution proceedings. His case was that the present defendant No. 1, Sudhangshu Kumar Mitra after his auction purchase of the superior interest demanded selami and increased rent from him; that on his refusal to accede to his request, the landlord instituted a suit for rent being Rent Suit No. 1285 of 1941 against a fictitious person Abdul Rahman describing him as a Mutwalli of the Wakf Estate and obtained an ex parte decree. The Court directed the present plaintiff to deposit the decretal dues by the 28th February, 1942, in the Rent Execution Case No. 590 of 1941 and also ordered that the decree‑holder would correct the clerical error regarding the name of the Mutwalli in the record of the rent suit. The present plaintiff, however, did not deposit the decretal dues with the result that the execution sale was held and defendant No. 2, Karam Ali, auction purchased the suit properties. Thereafter the plaintiff amended his plaint by adding a further prayer to the effect that the auction sale also may be declared null and void. It might also be mentioned that before the execution sale the decree‑holder did not apply for correc tion in the name of the Mutwalli. Now it is not disputed that Azizar Rahman was the Mutwalli of the Wakf Estate and that the rents for the disputed lands for 1345 to 1347 were due. The main defence of defendant No. 1 was that as in the Touzi, the name of the Mutwalli was written as Abdul Rahman, hence he gave that name in the plaint. He further contended that there was due service of summonses and that in any event the plaintiff who was aware of the rent suit did not wilfully enter appearance in the said suit. The learned Munsif dismissed the suit and arrived at the following conclusions :‑(1) that the plaintiff Azizar Rahman was Mutwalli of the estate Felagazi Sawdagar ; (2) that Rent Suit No. 1286 of 1941 was primarily brought against the Wakf estate though the name of the Mutwalli was given as Abdul Rahman ; (3) that there was no fraudulent suppression of summonses. The learned Subordinate Judge upheld the decisions and findings of the learned Munsif. He further held that the no service of notices under section 70 (2) of the Bengal Wakf Act cannot be an adequate ground for declaring the sale null and void. Hence this second appeal by the plaintiff. The contentions of the appellant are as follows :‑(1) that the decree having been obtained against a fictitious person Abdul Rahman, as Mutwalli could not be executed against Azizar Rahman the present Mutwalli ; (2) that in the absence of notice on the Wakf Commissioner under section 70 (2) of the Bengal Wakf Act, the sale was not binding on the Wakf estate. Now it is admitted that the decree was obtained against one Abdul Rahman who was described as Mutwalli of the Wakf estate and that the decree‑holder in spite of the order of the executing Court to correct the name did not bring the right Mutwalli on the record. The learned Advocate for the respon dent has contended that the suit was substantially against the Wakf estate and that there was a mere mix‑description in the name of the Mutwalli and as such the decree and the sale held thereunder should not be set aside. The question is, if on the above ground the decree obtained in Rent Suit No. 1286 of 1941 can be set aside. It is now well settled that an ex parte decree can be set aside by a new action when the Court passing it had been misled by fraud. Further it has been held in the case of Kunjabehari Chakravarty v. Krishnadhone Majumdar C W N 912 at p. 917 that "to sustain an action for setting aside a decree the fraud alleged and proved must be 'actual positive fraud, a meditated and inten tional contrivance to keep the parties and the Court in ignorance of the real facts of the case and obtaining that decree by that contrivance'." The fraud alleged in this case is that the defendant Sudhangshu Kumar Mitra after purchasing the superior interest demanded selami and higher rent and on the plaintiff's refusal to accede to his request, Sudhangshu Kumar Mitra after sup pressing all summonses got a decree in the name of a fictitious person. Both the Courts have disbelieved this story. Further it seems that this Sudhangshu Kumar Mitra who was a new purchaser of the mahal instituted the rent suit after purchase and by mistake described the defendant Mutwalli as Abdul Rahman instead of Azizar Rahman. Further, the findings of the learned Subordinate judge is that the rent claimed was due and the summonses were served. He has also disbelieved the story of the Mutwalli that the landlords had demanded a selami or increase of rent. Further the findings of the Courts below are there was no fraudulent suppression of summonses. In this view of the matter, I agree with the Courts below that the plaintiff has failed to prove that the ex parte decree was obtained by fraud. The next question is : Can this rent decree be executed against the Wakf estate ? No doubt relief was claimed against the Wakf estate but in the suit a Wakf estate had to be represented by its Mut walli. Hence the question is, if the Wakf estate was properly represented in the suit. I should answer this question in the negative. It is evident that a fictitious person called Abdul Rahman who admittedly was not a Mutwalli was described in the cause title as Mutwalli representing the Wakf estate of Felagazi Sawdagar. Hence it is clear that the Wakf estate was not properly represented in the suit. Here I may observe that there is a vast difference between mix‑describing a party intended to be sued and suing a wrong party. In the suit a decree was sought against a wrong person in order to bind the Wakf estate. In the circumstances, I think the learned Advo cate has rightly contended that the ex parte decree obtained by the plaintiff in Rent Suit No. 1286 of 1941 could not be binding against the Wakf estate. Further it appears that the decree‑holder later came to know about his mistake in naming a wrong person as Mutwalli and in spite of Court's direction to amend the cause title, he did not take any step in the matter. For the reasons stated above, I am of opinion that the decree obtained in Rent Suit No. 1286 of 1941, could not be executed against the Wakf estate. Lastly, the contention of the appellant is that in the absence of the notice on the Wakf Commissioner under section 70 (2) of the Bengal Wakf Act, the sale will not be binding on the Wakf estate. The learned Subordinate judge has dealt with this point as follows :‑‑ It was nothing but a mere omission. The omission of service of such notice alone is no ground for obtaining a declaration that the sale, which had been duly held is null and void. It seems to me that the learned Subordinate judge has not fully appreciated the implications of section 70 (2) of the Bengal Wakf Act. In the case of Gaurishankar anal others v. The Commissioner of Wakfs, Bengal 47 C W N 436, the Court while considering whether such a notice was essential or not made the following observation :‑ " If the property so sold be Wakf property, the sale will not bind the Wakf estate and the Mutwalli can bring a suit to recover the property from the purchaser and, failing him, the Commissioner may himself bring a suit under section 72 of the Act." Hence it is clear that a notice under section 70 (2) of the Act is mandatory when a property is notified for sale as Wakf property. But as no such notice was given to the Wakf Com missioner in Rent Execution Case No. 590 of 1941, the Mutwalli is entitled to challenge the said rent sale. In this view of the matter, I hold that the plaintiff appellant is entitled to get a declaration in his suit that the sale of the Wakf property is null and void and is not binding on the Wakf estate. In the result the appeal is allowed in part ; the sale held in Rent Execution Case No. 590 of 1941 is set aside but the prayer for setting aside the ex parte decree in Rent Suit No. 1286/41 is refused. In conclusion I might observe that the conduct of the Mut walli was not above reproach and hence I order that each party will bear his own cost in the suit and in the appeals. A. H. Appeal allowed in part.