JUDGMENT Coxe, J. - The facts of this case as they have been laid before us are as follows :-- One Golam Rahman mortgaged certain property to the Appellant. The Appellant obtained a decree on that mortgage and certain property was attached in execution. Thereafter Yakub Husain brought a suit for declaration that this property was wakf and could not therefore be attached and sold in execution of Golam Rahman's debt That suit was decreed by the courts below. On appeal to this Court Golam Rahman and Najoo Bibee were substituted on the record as heirs of Yakub Husain who had died, and the appeal was dismissed with costs as against Golam Rahman and was decreed on compromise as between the Appellant and Najoo Bibee. As regards Najoo Bibee, it was ordered that the decree of the lower court be set aside and the said Appellant do recover the money due to him by sale of 4 annas share of the properties mentioned in the schedule to the plaint. The Appellant applied for execution of this decree against Najoo Bibee not making Golam Rahman a party to the execution. Golam Rahman came in and alleged that he was the sole mutwali of the property and that the property was wakf and could not be sold in execution. The first court disallowed this objection and ordered execution to proceed. On appeal the learned District Judge set aside this order and rejected the Appellant's application for sale. The learned Judge held that the direction in the decree that the Appellant should recover the money due to him by sale of a quarter of the property did not authorise the sale of the property in execution of that decree, but only enabled the Appellant to execute the former decree upon the mortgage. The suit of Yakub was a suit for a declaration and could not terminate in the learned Judge's opinion in a mortgage-decree in favour of the Defendant. I am not prepared to say that if the parties settled their differences in such a way that the Defendant was declared entitled to recover money from the Plaintiff, at compromise decree of that nature could not be enforced in ordinary execution. But in my opinion, the High Court decree is incapable of execution. Yakub was succeeded by Golam Rahman and Najoo. But in my opinion, the High Court decree is incapable of execution. Yakub was succeeded by Golam Rahman and Najoo. He had obtained a decree that the property was dedicated to the diety and inalienable. The appeal against that decree was dismissed, as against one of his joint representatives, in toto, and not only so far as it affected three quarters of the property. That is a final decision between the Appellant and Golam Rahman as a part representative of the former mutwali that the property is dedicated to the diety and inalienable. It appears to me that a direction in the same decree that a portion of the property can be sold is irreconcilable with the rest of the decision and makes it impossible to carry the whole decree into effect, or in other words, makes the decree incapable of execution. The case is somewhat obscured by the fact that the representative of Yakub against whom the whole appeal was dismissed is Golam Rahman. He was the original mortgagor, and it is impossible for him in his personal capacity to resist the mortgage. But his personal conduct does not bind him as a mutwali, and there cannot in my opinion be any question of estoppel. The estate which has been dedicated to the deity cannot be prejudiced by the acts of a perhaps unworthy representative. In this matter Golam Rahman objects, as the mutwali of the endowment, that the property is not saleable. The decree which is being executed shows that his contention is well founded. It may be that he is only a joint mutwali, but he is interested in and entitled to defend every inch of the property, as one at least of the trustees of the endowment. In these circumstances, it seems to me that he is entitled to succeed as such trustee, whether the former proceedings are or are not conclusive against him in his individual capacity. 3. Reliance, however, has been placed on the decision in Shaikh Golam Rahman v. Surendra Nath Ray. Mis. App. No. 20 of 1907. Unreported. The facts in that case were exactly the same except that the creditor was different. That case also had arisen out of a mortgage by Golam Rahman, and a suit by Yakub, which was decided together with the suit out of which this case arises by the same judgment. Mis. App. No. 20 of 1907. Unreported. The facts in that case were exactly the same except that the creditor was different. That case also had arisen out of a mortgage by Golam Rahman, and a suit by Yakub, which was decided together with the suit out of which this case arises by the same judgment. And the learned Judges held that the creditor was entitled to succeed. 4. The learned Judges, however, seem to have been unaware that Golam Rahman had with Najoo Bibee been substituted in the former case for Yakub. They say :-- "The suit which was instituted by Yakub Husain was instituted against the present decree-holders and the judgment-debtor Golam Rahman, the latter being made a pro forma Defendant. The Plaintiff Yakub Husain in that suit no doubt obtained a decree against the two Defendants, but there was no decree in favour of the pro forma Defendant Golam Rahman against the present decree-holders, who were also Defendants. The decree which Yakub Husain obtained did not inure to the benefit of Golam Rahman. Then the case came before this Court in second appeal. The widow of Yakub Husain compromised the case, allowing the decree-holders to proceed against the 4-anna share of the property of Yakub. There was no compromise effected between the decree-holders and Golam Rahman and the appeal of Yakub Husain against Golam Rahman was dismissed." As a matter of fact Yakub's appeal was not dismissed. It was not he that appealed. The creditor's appeal against him was dismissed and certainly this dismissal of the appeal inured to the benefit of his representatives. 5. I am not prepared, therefore, to accept this decision as binding upon us. It proceeds upon facts and does not lay down any principle of law. 6. On looking into the judgment of 1904, I see that the property was held to be wakf and that the creditor could not proceed against it except in so far, of course, as Golam Rahman had a personal interest in it. The learned Chief Justice said--"The finding of the Court below is that all the properties were wakf properties and upon the terms of the wakfnama, as printed in the paper-book, the view taken by the Court below seems to be right. The learned Chief Justice said--"The finding of the Court below is that all the properties were wakf properties and upon the terms of the wakfnama, as printed in the paper-book, the view taken by the Court below seems to be right. "The Court below has been careful to leave open any question of liability as against Golam Rahman in respect of any beneficial interest that he may have in the wakf property. I think, therefore, that these appeals must be dismissed with costs, as against the Respondent Golam." 7. It has been argued that no appeal lay to the District Judge and that therefore the Munsif's order should be restored. But it is clear that an appeal lay. It was held in Kartik Chandra Ghosh v. Ashutosh Dhara 16 C. W. N. 26 : s. c. I. L. R. 39 Cal. 298 (1911), which may be regarded as overruling Jogendra Nath Sarkar v. Gobinda Chandra Dutt I. L. R. 35 Cal. 364 (1908), that when a judgment-debtor claims property not in his personal capacity, but as shebait for an idol, who was not a party to the suit, the case does not come under sec. 47, C. P. C., and no appeal lies. But in this case Golam Rahman is a party to the suit both in his personal capacity and also in his representative capacity. 8. Then it is argued that the case may be regarded as a continuation of the original execution proceedings and not as an execution of the High Court decree. But when the original execution was interrupted by a suit for a declaration that the property could not be sold and that declaration was decreed, the decision is just as fatal to the former as to the subsequent execution. 9. The Deputy Registrar who appears for the minor successors of Najoo Bibee supports the Respondent. 10. In my opinion, the execution cannot proceed in the face of the decision of 1904. The appeal is accordingly dismissed with costs. We assess the hearing fee at three gold mohurs. Ray, J. I agree in holding that the compromise decree is incapable of execution. It is not correct to say that the decree-holders were to execute their original mortgage-decree. That decree has become merged in the compromise decree so far as the mortgaged property which formed the subject of suit by Yakub is concerned. Ray, J. I agree in holding that the compromise decree is incapable of execution. It is not correct to say that the decree-holders were to execute their original mortgage-decree. That decree has become merged in the compromise decree so far as the mortgaged property which formed the subject of suit by Yakub is concerned. The compromise decree is incapable of execution, because Golam Rahman objects that the property is wakf and not saleable. He was a party to the suit which resulted in the compromise decree and when that decree is sought to be executed, he can properly come in under sec. 47, C. P. C. His brother had it established as against these decree-holders that the property was wakf and he as a representative of his brother sets up that decree as barring execution against it. The Full Bench case of Kartick Chandra Ghosh v. Ashutosh Dhara 16 C. W. N. 26 : s. c. I. L. R. 39 Cal. 298 (1911) has no application to the present case. There is no estoppel and sec. 43 of the Transfer of Property Act does not stand in the way. Here Golam Rahman has not acquired any interest in the property in the sense in which the word 'interest' has been used in the section. The property has been found to be the property of the deity and Golam Rahman is one of the mutwalis. He can well say--I deemed the property not to be wakf and so mortgaged it to you, but now that it has been established to be wakf at the instance of my brother and the trust has devolved on me as one of the representatives of my brother, I am bound to tell you that you cannot sell. It appears to me, there is no answer to this.