IMPORTANT POINT
The Civil Court retains jurisdiction over waqf disputes until the Waqf Tribunal is constituted, and review petitions cannot be used to reargue previously decided issues.

O R D E R

This review petition is filed to review the judgment of this court in OP(C) No.177/2023, dated 5/11/2024.

2. The review petitioners are respondents 1, 3 and 5, and the respondents are petitioners 1 to 8 and respondents 2, 4, 6 to 15 in OP(C) No.177/2023. The original petition has been filed challenging the order passed by the Munsiff Court, Kothamangalam returning the Execution Petition filed by the decree holder in EP No.23/2019 in OS No.403/1996 to file before the proper court on the ground that it has no jurisdiction to execute the decree as per Section 37(b) of CPC. This Court found that the decree is executable, and the Executing Court has jurisdiction to execute the decree. The order passed by the Executing Court returning the Execution Petition to file before the proper court was set aside, and the Executing Court was directed to proceed with the execution and complete it as expeditiously as possible, at any rate, within a period of three months. Thereafter, the Executing Court after issuing notice under Rule 35 of Order 21 of CPC to all the judgment debtors, deputed Court Amin to take delivery of the property and hand over the same to the decree-holders as per the decree vide order dated 9/12/2024. It is thereafter the review petition has been filed.

3. I have heard Sri.T.Krishnanunni, the learned Senior Counsel for the review petitioners, Sri.Babu Karukapadath, the learned counsel appearing for respondents 1 to 8, Sri.K.Paul Kuriakose, the learned counsel appearing for respondents 9 and 10 and Sri.Jamsheed Hafiz, the learned standing counsel for the Waqf Board.

4. The subject matter of the suit is a waqf property registered with the Kerala State Waqf Board. The relief sought in the plaint falls within the ambit of Section 85 of the Waqf Act. The judgment and the decree in the suit, as confirmed in the appeal, have found the administration of the decree-schedule properties on the decree holders' family and permitted them to recover possession of the same. 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 judgment debtors had taken 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. The appeal preferred against the decree judgment was dismissed, and thus, the decree has become final. In the Execution Petition, the judgment debtors took up mainly two contentions: (i) The decree is inexecutable since it was passed by a court which did not have jurisdiction; (ii) The Execution Petition is not maintainable before the Civil Court/the Executing Court as per Section 37(b) of CPC. The Executing Court found that the court which passed the decree had jurisdiction to pass the decree. However, it took the view that as per Section 37(b) of CPC, it has no jurisdiction to execute the decree, and the remedy open to the decree holders is to file an Execution Petition before the Waqf Tribunal. The decree-holders challenged the order passed by the Executing Court, returning the Execution Petition to file before the proper court before this court in OP(C) No.177/2023. In short, there was no challenge against the finding of the Executing Court that the Civil Court had jurisdiction to pass the decree. However, this court in OP(C) No.177/2023 specifically considered the contention raised by the judgment debtors that the Civil Court had no jurisdiction to pass the decree since the Waqf Tribunal was constituted by the time the decree was passed in view of the express bar under Section 85 of the Waqf Act. After considering the rival contentions, this court found that the bar of jurisdiction of Civil Courts under Section 85 of the Waqf Act would be effective only with effect from the constitution of the Waqf Tribunal; till such time, the jurisdiction of the Ci