Ayesha Bibi vs Commissioner Of Wakfs, West Bengal & Ors on 15 July, 1969
The learned counsel further relied upon Muzafar Ahmed v.
Indra Kumar Das and Others(1). In that case the
Commissioner was sent a notice but was not made a party.
The suit was,dismissed. In the appeal that followed the
Commissioner was not made a party and no notice of appeal
was served or him. The appeal was allowed. In the second
appeal a ground was taken that the appeal below was
incompetent as there was no notice to the Commissioner.
Notice of the second appeal was however, issued to the
Commissioner. The decree was hed to be not void but
voidable and as the Commissioner had not applied within a
month the decree was allowed to stand. the court also held
that the worrds 'suit or proceeding' in s.70(40 did not
include an appeal. There is much in this decision which may
require careful consideration. It is sufficient to say that
the decision does not support the present constention of the
Commissioner.