JUDGMENT
1. This appeal by the Bihar State Sunni Waqf Board through its Chairman and Secretary is directed against the order dt 12-12-1973, passed by the Subordinate Judge, Begusarai in Title Execution Case No, 31 of 1951.
2. In order to appreciate the points involved in this case it will be relevant to state a few facts giving rise to this application. By a deed of waqf dt 11-4-1870 one Maulvi Ghulam Yahiya created a Waqf Estate dedicating considerable properties. One Syed Bashiruddin Ashraf (respondent No. 1) was Mutwalli of this Waqf Estate who was removed, from his office by the Bihar Subal Sunni Majlis Auqaf (hereinafter referred to as “the said Majlis”) by an order dt 28-6-1951 and in his place Moulvi Qazi Mohammad Shoaib, pleader of Begusarai Court (respondent No. 3) was appointed a temporary Motwalli. The said Majlis and the temporary Motwalli Moulvi Qazi Mohammad Shoaib filed a petition in the court of the Subordinate Judge, Begusarai to get possession of the waqf properties through the assistance of the Court, which was numbered as Title Execution Case No. 31 of 1951. Several litigations arose in connection with the said execution proceeding, many of which came to this Court, but for deciding the present dispute it is not necessary to state about them in detail.
3. Syed Bashiruddin Ashraf who bad been dismissed from the post of Motwalli, made some attempts for settlement by compromise but no compromise could be arrived at In the meantime several Special Officers of the Board changed hands and one Mr. Shamaite-Nabi was appointed as Special Officer sometime in the year 1972. The dismissed Motwalli Syed Bashiruddin Ashraf approached him and a compromise was arrived at According to the terms of that compromise between the Board and the dismissed Motwalli, Syed Zahiruddin Ashraf who incidentally happened to be the son of the dismissed Motwalli, was appointed as the Motwalli of the Wakf Estate on 10-4-1973. After Syed Zahiruddin Ashraf became the Motwalli, he filed a petition along with a prayer on 5-5^1973 in the execution case praying therein to amend the title execution case by striking out the name of Qazi Md Shoaib as decree-holder No. 2 and to substitute his name in his place on the ground that he had been appointed as permanent Motwalli by an order dt. 10-4-1973. On the same date a petition was also filed on behalf of the judgment-debt or Syed Bashiruddin Ashraf (dismissed Motwalli) to expunge the name of Qazi Md Shoaib from the category of decree-holder No. 2 as he had been dismissed by the Special. Officer. The Wakf Board which was described in the execution case as decree-holder No. 1 filed a rejoinder on 8-6-1973 against the prayer for substitution of Syed Zahiruddin Ashraf as decree-holder No. 2 on the ground amongst other, that the order dt 10-4-1973 appointing Syed Zahiruddin Ashraf as Motwalli was collusive, uncalled for, illegal and detrimental to the Wakf Estate. The learned Subordinate Judge, however, allowed the petition of Syed Zahiruddin Ashraf for substitution and the name of Qazi Md Shoaib was expunged as decree-holder No. 2 in the execution case.
4. On 7-4-1973 a joint petition had been filed on behalf of the decree-holder namely, the said Majlis and the judgment-debtor Syed Bashiruddin Ashraf under Order XXIII Rule 3 of the Civil P. C (hereinafter to be called as “the said Code”) praying therein to dispose of the execution case in terms of the order of compromise passed by the Special Officer of the Board on 30-1-1973. A prayer had ; been made in the said application that the terms of compromise be made part of the order of the court disposing of the execution case. This was objected to on behalf of the decree-holder by the successor Board by filing an objection on 8-6-1973. It was contended that the compromise petition was not maintainable, as it had been fraudulently obtained by the judgment-debtor from the then Special Officer of the Board namely, Mr. Shamail-e-Nabi Another petition was filed by the successor-Board (decree-holder) on 1-12-1973 to decide the execution case after taking evidence. The learned Subordinate Judge after hearing the parties came on the conclusion that the compromise petition was valid and legal and the entire claim had been lawfully adjusted by the said compromise, and he finally ordered as follows: —
"..... Let the compromise be recorded and the execution case disposed of in terms thereof. The compromise petition along with annexure attached to it shall form part of the decree. All the miscellaneous cases arising out of this execution case shall stand disposed of in view of the compromise recorded already in the execution case." 5. The present appeal was filed by the Board against this order passed by the j learned Subordinate Judge. At the very out set Mr. Dayal, learned counsel appearing on behalf of respondent No. 2, submitted that this appeal is not maintainable, inasmuch as, no appeal lies against an order passed under Order XXIII Rule 3 of the said Code. There appears to be substance in this contention and as contended on behalf of the appellant, we treat this appeal as a civil revision and proceed to decide the case accordingly. 6. Learned counsel appearing on behalf of the petitioner-Board, submitted before us that the execution case could not j be disposed of on the basis of the compromise as it is barred by Order XXIII : Rule 4 of the said Code. His another contention is that Syed Zahiruddin Ashraf (opposite party No. 2) who claims to have been appointed Motwalli under Section 43(5) of the Wakf Act, 1954, could not be substituted in place of Qazi Mohammad Shoaib as one of the decree-holders.
7. Order XXIII Rule 3 of the said Code provides that where the Court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith, In terms it contemplates the adjustment or determination of the rights of the parties in a suit either wholly or in part. The executing court is neither entitled to nor can be called upon to adjudicate the rights of the parties. It has merely to execute a decree passed by a civil court Accordingly, Order XXIII Rule 4 of the said Code bars the executing court from applying Order XXIII of the said Code to any execution proceeding.
8. As has been stated above, the court below on an application made under Order XXIII Rule 3 of the said Code, has in the present case, recorded the compromise and has disposed of the execution case in terms thereof. Not only that, the learned Subordinate Judge has further stated that the compromise petition along with annexure thereto shall form part of the decree. Needless to say that the executing court has no jurisdiction to pass such an order and to make the decree in terms of the compromise as part of the same. By doing so, the learned Subordinate Judge has varied the terms of the decree by substituting it by the compromise. Mr. Dayal learned counsel appearing on behalf of the opposite party has, however, placed before us a decision of the Supreme Court in the case of Motilal Banker v. Mahmood Hasan Khan AIR 1968 SC 1087. That was, however, absolutely a different case. In that case the judgment-debtor had given an undertaking to pay interest at a rate higher than the decretal rate of interest if the execution was postponed. In that case it was held that the executing court could determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to payment of the higher rate of interest, and that the jurisdiction of the executing court to enforce such a compromise is not taken away by Order XXIII Rule 4 of the said Code, because there is a provision to this effect contained in Order XX Rule 11(2) of the said Code, which, inter alia, provides that after the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order, that payment of the amount decreed shall be postponed or shall be made by the instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit In fact it was held in the said case by the Supreme Court that the effect of Order XXIII Rule 4 of the said Code was that Order XXIII Rule 3 does not apply to the execution proceedings. By applying Order XXIII Rule 3 of the said Code to the present execution case and recording compromise and by disposing of the execution proceeding in terms thereof, the executing court has certainly travelled beyond its jurisdiction and as such the impugned order passed by him must be set aside on this ground.
9. As we have stated above, Syed Zahiruddin Ashraf had applied for being substituted in place of Qazi Md. Shoaib on 5-5-1973 on his being appointed as a Motwalli and he had been substituted as one of the decree-holders by the same order by the learned executing court. It further appears that Qazi Md. Shoaib had been appointed as a temporary Motwalli on 28-6-1951 by the said Majlis under Bihar Act, 1947. This had the effect of a decree under Section 55-A of the said Act and was enforceable by any civil court having legal jurisdiction in the same manner as a decree of any Court.
10. As stated earlier Qazi Md Shoaib had filed the present Title Execution Case No. 31 of 1951 to execute the said decree and for taking possession over the wakf properties from Syed Bashiruddin Ashraf. Syed Zahiruddin Ashraf had been appointed as Motwalli by the then Special Officer on 10-4-1973 under the Bihar Act and therefore his appointment had also the force of a decree. It was uncalled for, for Syed Zahiruddin Ashraf to file the substitution petition to be substituted in place of the decree-holder. It was not a case of assignment of a decree. Order XXI Rule 16 of the said Code provides that where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. In the present case, after appointment of Syed Zahiruddin Ashraf, Qazi Md. Shoaib really became the judgment-debtor, inasmuch as, by the appointment of the former the latter had been removed. Therefore, in effect the decree in favour of Qazi Md. Shoaib had really become non est and there was nothing to be executed in favour of or at the instance of Qazi Md Shoaib. The appointment of Syed Zahiruddin Ashraf by order dt. 10-4-1973 became in terms a decree in itself which could be executed by Syed Zahiruddin Ashrar himself in accordance with law. Therefore, the application of Syed Zahiruddin Ashraf for substitution in place of Qazi Md. Shoaib was uncalled for and misconceived, and as such the same could not be allowed by the executing court.
11. For the reasons stated above, we allow this application and set aside the order dt. the 12th of December, 1973 passed by the learned Subordinate Judge in Title Execution case No. 31 of 1951. As we have observed above the decree sought to be exeuted in Title Execution case No. 31 of 1951 on the appointment of Syed Zahiruddin Ashraf and the dismissal of Qazi Md. Shoaib became non est there shall now be no question of executing the same and the same shall be deemed to have been dismissed. In the circumstances of the case, the parties shall however, bear their own costs.