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IN THE HIGH COURT OF ALLAHABAD
Rajan Roy, J.
Waqf No. 34-A, Ashiq Abbas Khan Thru. Khwaja Mohd. Salman - Revisionist
Versus
U.P. Sunni Central Board of Waqfs, Lucknow and Others – Opposite Parties
Civil Revision No. - 45 of 2018
Decided On : 15-12-2021
Waqf Act, 1995 - Section 83(9) - Civil Procedure Code, 1908 - Sections 37 and 38 - Constitution of India, 1950 - Article 227 – Execution Case - Mutawalli - Definition of Court which passed a decree - Constitution of Tribunals, etc - Suit for specific performance of contract – Decreed – Challenged - Whether the Judgment and Decree passed in Regular Suit is executable by the civil court or by the Waqf Tribunal - Alleged that the Central Sunni Waqf Board entered into a contract with the respondents no. 2 to 6 for sale of a property which was part of the Waqf in question, for various reasons, and as the Board did not perform its part of the contract, therefore, the Suit was filed for specific performance, which, as already stated, was decreed.
Finding of the court:
When decree was being executed by it and same has already been rejected, against which a petition under Article 227 of Constitution of India is pending, therefore, subject to whatever orders have been passed in those proceedings under Article 227 of Constitution of India or which may be passed hereinafter, this Court is of the opinion that there is no jurisdictional error whatsoever in the order passed by the Waqf Tribunal, as, it is the civil court which passed decree which has jurisdiction to execute it - No doubt after coming into force of the Waqf Act, 1995 all matters where there is a dispute relating to Waqf have to be transferred to Waqf Tribunal for adjudication, but, in a case where the decree has been passed and execution is going on before civil court, question to be considered was as to whether Tribunal has power to execute such decree which as stated hereinabove it does not have, but, this aspect of matter was not considered - No doubt order was not challenged by respondents herein but then question involved herein is one of the jurisdiction and merely because it was not, it can not confer jurisdiction upon the Tribunal to execute decree - In this view of the matter we hold that the Tribunal was justified and correct in transferring the records of Execution Case back to civil court for execution by its order, which does not suffer from any error.
Result: Revision dismissed
JUDGMENT :
1. Heard Shri Yogesh Kesarwani, learned counsel for revisionist, Mohd. Shakeel, learned counsel for respondents no. 2 to 6 and Shri Q.H. Rizvi, learned counsel for respondent no. 1.
2. This is a revision under Section 83(9) of the Waqf Act, 1995 by the Mutwalli of the Waqf challenging an order dated 20.06.2018 passed by the U.P. Waqf Tribunal, Lucknow in Execution Case No. 04 of 2001; Khawaja Raziuddin Vs. U.P. Sunni Central Waqf Board by which it has returned the records of the said execution case to the Civil Court for execution.
3. A Suit for specific performance of contract bearing R.S. No. 4 of 1981 was filed by the respondent in the civil court which was decreed by the civil on 20.01.2001. Execution Case No. 4 of 2001 was filed for executing the aforesaid decree. As informed by Mohd. Shakeel, learned counsel the Board had challenged the said decree in Appeal which was rejected. Shri Yogesh Kesarwani, learned counsel for revisionist says that the revisionist-Mutwalli had challenged the judgment and decree in First Appeal which was dismissed on the ground of limitation. Thereafter, the matter was not taken any further either by the Board or by the revisionist-Mutwalli.
4. It is not out of place to mention that by an order dated 17.02.2018 the Court of Additional Civil Judge (Senior Division), Court No. 2, Lucknow had transferred the records of the Execution Case No. 04 of 2001 referred hereinabove to the U.P. Waqf Tribunal Lucknow on the ground that in view of the Administrative Order of the High Court issued through the Registrar General dated 13.04.2016 and thereafter an order dated 23.02.2017 issued by the District Judge on the Administrative side all matters pertaining to the Waqf are to be transferred to the Tribunal. However, while doing so the civil court did not notice not consider the provisions of the Waqf Act, 1995.
5. It is not out of place to mention that the respondents no. 2 to 6 or their predecessor in interest opposed the transfer of the records of the Execution Case No. 4 of 2001 from the civil court to the Waqf Tribunal as is recorded in the order dated 17.02.2018 and subsequently, another application was filed before the Waqf Tribunal that it does not have the power to execute the said decree, which has been allowed.
6. Now, the revisionist-Mutwalli, who was the defendant in the Suit and whose objections under Section 47 CPC filed before the Civil Court in Execution Case No. 04 of 2001, prior to its transfer to the Waqf Tribunal, have been rejected on 07.11.2008 against which a petition under Article 227 of the Constitution of India is pending before the High Court as informed by Sri Yogesh Kesarwani, learned counsel for revisionist and in which there is an interim order allegedly to the effect that any order in the execution proceedings shall abide by final decision in those proceedings under Article 227 of the Constitution of India, has challenged the aforesaid subsequent order of the Tribunal dated 20.06.2018 sending back the records to the civil court for execution.
7. On a perusal of the order impugned before this Court which is dated 20.06.2018 it is revealed that the Tribunal was persuaded to return back the records for execution by the civil court in view of the provisions of Section 38 CPC as also Section 83 of the Waqf Act, 1995.
8. Now, the question before this Court is as to whether the Judgment and Decree dated 20.01.2001 passed in Regular Suit No. 4 of 1981 is executable by the civil court or by the Waqf Tribunal. In this context it may be pointed out that the Suit was for specific performance of contract. It was alleged that the Central Sunni Waqf Board entered into a contract with the respondents no. 2 to 6 for sale of a property which was part of the Waqf in question, for various reasons, and as the Board did not perform its part of the contract, therefore, the Suit was filed for specific performance, which, as already stated, was decreed on 20.01.2001.
9. The Suit for specific perfor
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