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IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
T.K. Makkar, S/o. Karrorkutty and Ors. – Petitioners
Versus
Meeravu Haji, S/o. Oorai and Ors. – Respondents
OP(C) No. 177 Of 2023
Decided On : 05-11-2024
(A) Waqf Act, 1995 – Sections 83 and 85 – Civil Procedure Code, 1908 – Sections 37 and 38 – Execution of decree – The decree obtained in 2000 remains unexecuted due to jurisdictional challenges. The trial Court had jurisdiction to pass the decree despite the Waqf Tribunal's later constitution. The Executing Court's finding that it lacked jurisdiction to execute the decree was incorrect. (Paras 9, 10, 12, 13)
(B) Jurisdiction – The bar under Section 85 of the Waqf Act applies only after the Tribunal's constitution; suits filed before that remain valid in Civil Court. (Paras 10, 11)
(C) Necessary Parties – The interim Mutawalli appointed by the Waqf Board is a necessary party to the execution proceedings. (Paras 14, 15)
Facts of the case: The petitioners are decree holders in a suit regarding the management of a mosque, which was decreed in their favor in 2000. The execution petition faced jurisdictional challenges due to the establishment of the Waqf Tribunal.
Findings of Court: The Civil Court retains jurisdiction to execute the decree despite the Waqf Tribunal's establishment. The Executing Court's dismissal of the interim Mutawalli's impleadment was erroneous.
Issues: Whether the Civil Court had jurisdiction to execute the decree post-constitution of the Waqf Tribunal and the necessity of the interim Mutawalli's presence in the proceedings.
Ratio Decidendi: The court held that the Civil Court retains jurisdiction to execute decrees related to waqf disputes even after the Waqf Tribunal's establishment, and the interim Mutawalli is a necessary party to the execution proceedings.
Result: The Original Petition is allowed, and the Executing Court is directed to proceed with the execution within three months.
JUDGMENT :
(Kauser Edappagath, J.) :
More than one and a half centuries ago, the Privy Council,[Raj Durbhunga v. Maharajah Coomar Ramaput Sing (1872) SCC OnLine PC 16] observed that - “the difficulties of a litigant in India begin when he has obtained a decree”. This case is a live illustration of the said observation. A decree obtained in the year 2000, in a suit instituted in the year 1996, still remains unexecuted – without even settling the issue regarding the forum to execute it.
2. The petitioners are decree holders 7 to 12, 14 and 15 in EP No.23/2019 in OS No.403/1996 on the file of the Munsiff's Court, Kothamangalam (for short, the Executing Court). The other decree holders, except the 13th decree-holder, are no more. The 13th decree holder has been arrayed as respondent No.15 as he is out of station. The respondent Nos.1 to 13 are the judgment debtors 3, 4, 6 to 8 and 10 to 17. The other judgment debtors are no more.
3. The suit was one for declaration, permanent prohibitory injunction and recovery of possession. The subject matter of the suit was a mosque known as Kuttilanji Muslim Mosque, established by the ancestors of the petitioners/plaintiffs. It is admittedly waqf property registered with the Kerala State Waqf Board. According to the plaintiffs, the management/ administration of the mosque has always been with their family named Thottathikkulam family, which dedicated the property, with one of its members as Mutawalli. In the meanwhile, certain persons in the locality unlawfully formed a committee purported to be for the administration of the mosque, and later, they attempted to assert the right of administration over it, which led to the father of petitioners 1 and 2 and some other members of the Thottathikulam family instituting the suit. The defendants 2 to 9 were members of the said committee. The reliefs sought in the plaint fall within the ambit of Section 85 of the Waqf Act, 1995 (for short, ‘the Waqf Act’). At the time of the institution of the suit, the Waqf Tribunal was not constituted in the State of Kerala. However, during the pendency of the suit, it was constituted. The defendants took a contention in the suit that the suit was not maintainable before the Civil Court in view of the bar under Section 85 of the Waqf Act. The said contention was overturned by the trial Court and the suit was decreed as per Ext.P1 judgment. It was declared that members of the plaintiffs' family are entitled to manage the affairs of the mosque and the Mutawalliship as per Ext.A5 Udampady. The defendants 2 to 9 were restrained by a permanent prohibitory injunction from making any decision which will adversely affect the rights of the plaintiffs' family. The plaintiffs were also allowed to recover possession of the mosque from defendants 2 to 9. Against Ext.P1 decree and judgment, some of the defendants preferred appeal as AS No.87/2000 before the Appellate Court. The appeal was dismissed as per Ext.P2 judgment. The decree has become final. The judgment and decree in the suit, as confirmed in the appeal, has found the right of administration of the mosque and the properties on the petitioners' family and has permitted the recovery of the possession of the mosque. The petitioners and other decree holders filed an execution petition before the Munsiff's Court, Muvattupuzha, for execution, which was transferred to the Executing Court and renumbered as EP No.23/2019.
4. In the meanwhile, the Kerala State Waqf Board appointed Adv. Hazeem Khan, 14th respondent herein, as interim Mutawalli of the mosque, replacing the committee as per Ext.P4 order dated 17/5/2022 passed by it. As the committee was replaced with interim Mutawalli, the petitioners filed EA No.2/2022 (Ext.P5) to implead him as the additional 16th respondent in the Execution Petition. The Executing Court, as per Ext.P6 order, dismissed Ext. P5 impleading petition, finding that interim Mutawalli is not a necessary party to the execution petition.
5. In the execution peti
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