JUDGMENT
1. This is an appeal by a Judgment debtor arising out of execution proceedings. A simple money decree was passed against the appellant, and in execution of that decree certain properties were sought to be attached. The judgment-debtor objected that the property was wakf property and was not liable to attachment and sale. The Court below has held that the disputed property is dedicated property under a deed of wakf-alal-aulad, dated 12th August 1920. It has therefore come to the conclusion that the property could not be attached and sold but has appointed a receiver of the property. A preliminary objection is taken to the hearing of the appeal that no appeal lies. It is argued that the judgment-debtor in setting up a trust is resisting execution in a capacity different from that which he occupied as the judgment-debtor, and that therefore Section 47, Civil P.C., is inapplicable. Reliance is placed on the case in Kartick Chandra Ghose v. Ashutosh Dhara (1912) 39 Cal. 298. That ruling has no application to the present case. Here an order for the appointment of a receiver has been actually passed by the Court. It is an order under Order 40, Rule 1, and an appeal from this order is expressly provided for under Order 43, Rule 1(s). The objection is therefore over-ruled. The deed of wakf was executed professedly under Act 6 of 1913, and it provided that neither the property nor its income would be attachable and saleable in execution of any decree for money, in. eluding a dower-debt, against the mutawalli, nor would the usufruct be liable for his debts. The present decree is a decree for dower-debt.
2. Section 51, Civil P.C., is a general section prescribing the powers of a Court to enforce execution, and it is made subject to the conditions and limitations prescribed by the rules in the Schedule. Under Order 40, Rule 1(2), a Court is not empowered to remove, from the possession or custody of the property, any person whom any party to the suit has not any present right so to remove. In Lachmi Narain v. Piarey Lal A.I.R. 1932 All. 468 this Court held that no receiver could be appointed as manager of the entire partnership property when the judgment-debtor was one of the partners. Following the earlier cases of this Court in Gobind Ram v. Jwala Pershad A.I.R. 1918 All. 240 and in Makhan Lal v. Mushtaq Ali A.I.R. 1927 All. 419 a Full Bench of this Court in Ram Swarup v. Anandi Lal A.I.R. 1936 All. 495 held that a receiver could not be appointed in the case where the decree is for realization of the amount by sale of the mortgaged property. Recently it has been held in Amir Udddin Panchaiti Akhara Bara Udasi Nanak Shahi A.I.R. 1937 All. 389 that an execution Court cannot order execution of a decree by appointing a receiver for realizing the income from the occupancy and exproprietary tenancies of the judgment, debtor.
3. Learned Counsel for the respondent relies strongly on the ruling of their Lordships of the Privy Council in Ranjindra Narain Singh v. Mt. Sundar Bibi A.I.R. 1925 P.C. 176. The facts in greater detail are to be found in the judgment of the High Court in the same case Mt. Sundar Bibi v. Ranjindra Narain Singh A.I.R. 1921 All. 120. The High Court had pointed out; that the nearest definition of the precise interest of the judgment, debtor was that of an annuitant, subject to certain defined charges, with a reversionary interest in the corpus upon the death of his brother. The judgment-debtor was to possess and enjoy the immoveable property mentioned in the list, without power of transfer during the lifetime of his brother, undertaking to pay certain public exactions and other dues to his brother. He was not to be deprived of the possession of the villages but during the lifetime of his brother was to be entered on a sub-khewat to his brother without power of transfer, but was to become the absolute owner with power of transfer after his brother's death. The arrangement was however said to be in lieu of maintenance. The High Court held that the property was clearly saleable, and considered that the arrangement was not covered by the expression "a right to future maintenance." But the learned Judges doubted whether it was desirable to attempt to put an interest of that kind up for sale in the ordinary way, and suggested that the appropriate remedy was the equitable execution or indirect execution by the appointment of a receiver. Their Lordships of the Privy Council considered that under the compromise decree the judgment-debtor had been declared to have a right of maintenance, and that such right of maintenance in point of law was not attachable and not saleable. Their Lordships then observed that the remedy lies in a fitting case in the appointment of a receiver for realising the rents and profits of the property, paying out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor and his family and applying the balance, if any, to the liquidation of the judgment-creditor's debt. It will thus appear that the circumstances of that case were quite different. The property itself was saleable and the judgment-debtor was for all practical purposes in actual possession and effective enjoyment of the property in his own right, and was to appropriate the net income with only one restriction that he was not to transfer the property during the lifetime of his brother, though he could do so after his death.
4. In the present case the property is wakf property and is not liable to be attached or sold at all. There are provisions in the deed of wakf enjoining upon the mutawalli the performance of certain religious duties. Those duties cannot be performed by any other person until the mutawalli has been removed and such person has been appointed in his place. The appointment of a receiver to take charge of the entire property, which does not belong to the judgment-debtor, would be contrary to the provisions of Order 40, Rule 1(2), Civil P.C. and would amount to a dispossession of the trustee. The trustee is only entitled to a certain amount which remains over after the expenses. The Court cannot therefore appoint a receiver to take possession of the entire property itself. The case is somewhat analogous to the case in Bishen Chand v. Nadir Hossein (1893) 15 Cal. 329 and the observations of their Lordships in that case apply with equal force to the present ease, although there the question really was one of attachment and sale and not of appointment of a receiver. At pp. 339-340 their Lordships observed:
If the whole property is to be sold, it must be taken out of the hands of the trustee altogether and put into the hands of a purchaser. That purchaser might be a Christian, he might be a Hindu, or he might be of any other religion. It surely cannot be contended that property, devised by a Mahomedan lady to a Mahomedan trustee with the object of providing for certain Mahomedan religious duties, could be taken out of the hands of that trustee and sold to a person of any other religion, and that the purchaser should become the trustee for the purpose of performing or seeing to the performance of those religious duties. If property is to be sold and alienated from the trustee whom this lady appointed, or the trustee who was subsequently appointed by him to succeed him as trustee, the purchaser, of whatever religion he might be, would have to see to the execution of the trusts. Is it possible that the law can be such that a Hindu might become the purchaser of the property for the purpose of seeing to the performance of certain religious duties under the Mahomedan law? For example, that a Hindu might be substituted for a Mahomedan trustee for the purpose of providing funds for the Mohurrum, and taking care that it should be duly and properly performed, when it is well known what disputes and bitter feeling frequently exist between Hindus and Mahomedans at the time of the Mohurrum. The High Court says : "If there was a margin of profit, that margin of profit might possibly have been attached." Their Lordships cannot in this suit, in which all parties interested are not before it, decide as to the extent of the religious trusts, or whether any surplus profit after the performance of those trusts would belong to Mahomed Ali or the trustee substituted by him. The corpus of the estate cannot be sold, nor can any specific portion of the corpus of the estate be taken out of the hands of the trustee because there may be a margin of profit coming to him after the performance of all the religious duties.
5. It seems to us that, as the judgment-debtor has no proprietary interest in the property itself and is only entitled to the maintenance allowance out of the residue, no receiver can be appointed. In any case, under Order 40, Rule 1, the Court has discretion, where it appears to it to be just and convenient, to appoint a receiver. The provisions are not mandatory. We are therefore clearly of the opinion that in a case whore the property is dedicated property, and under the terms of the document has to be managed by a trustee, who is enjoined to perform certain religious duties as trustee, it would not be just and convenient to appoint a receiver of such property. We therefore allow this appeal and setting aside the order of the Court below, dismiss the application of the decree-holder.