No Bar On Civil Court To Execute Decree Over Waqf Dispute Even After Constitution Of Waqf Tribunal: Kerala High Court

Justice Kauser Edappagath clarified that even after the constitution of the Waqf Tribunal, the Civil Court continues to have jurisdiction to execute both its own decree as well as any decree passed by the Waqf Tribunal.

“Even after the constitution of the Waqf Tribunal, the civil Court did not cease to have jurisdiction to execute the decree passed by the civil Court in respect of a waqf dispute or to execute a decree passed by the Waqf Tribunal. There is no express provision in the Waqf Act that the Waqf Tribunal is the only Forum to execute the decree relating to Waqf disputes…..Thus, even after the constitution of the Tribunal under the Waqf Act, the civil Court continues to have jurisdiction to execute a decree passed by the Waqf Tribunal. For these reasons, I hold that there is no bar for the civil Court to execute a decree passed by it relating to a waqf dispute even after the constitution of the Waqf Tribunal.”

As per the petitioners, their ancestors established a mosque called Kuttilanji Muslim Mosque registered with the Kerala State Waqf Board. It is alleged that the respondents formed a committee unlawfully for the administration of the Mosque and tried to administer control over the Mosque.

As such, the petitioners filed a suit for declaration, permanent prohibitory injunction, and recovery of possession of the Mosque in 1996.

At the time of filing the suit, the Waqf Tribunal was not constituted in Kerala and it was only constituted during the pendency of the suit. The respondents argued that after the Tribunal's formation, the Civil Court lost jurisdiction under Section 85 of the Waqf Act.

The Trial Court in 2000 decreed the suit in favour of the petitioners granting them possession of the Mosque and issuing a prohibitory injunction restraining the respondents from managing the affairs of the Mosque.

The appeal was dismissed and the decree became final in 2016. However, when the petitioners filed an execution petition before the Munsiff's Court, it was challenged stating that the Civil Court lacked jurisdiction.

The Execution Court held that it has no jurisdiction to execute the decree and only Waqf Tribunal has the jurisdiction under Section 37 of the CPC. This was challenged before the Court.

Observations

The Court noted that Section 83 of the Waqf Act pertains to the constitution of Waqf Tribunals for adjudication of Waqf disputes and Section 85 bars the jurisdiction of civil courts. However, the Court observed that the Waqf Tribunal was not constituted when the suit was filed in 1995. It noted that the Waqf Tribunal came into existence vide a Government order in 1998 only during the pendency of the suit. The Court also clarified that there was no provision in the Waqf Act to transfer a suit to the Waqf Tribunal after the constitution of the Waqf Tribunal.

Court said, “In the absence of a provision to transfer the pending suit to the Waqf Tribunal, the civil court has jurisdiction to adjudicate the pending suit despite the bar under Section 85. 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 Civil Court would continue as a rightful forum for the adjudication of the Waqf disputes.”

Further, the Court observed that Section 7(5) of the Waqf Act states that the Tribunal will not have jurisdiction to determine suit or proceeding instituted or commenced in a civil court before the commencement of the Act.

“The said provision makes it clear that if any suit has been instituted in any civil court prior to coming into force of the Waqf Act, then the Tribunal will have no jurisdiction to decide such matter, and it will be continued and concluded as if the Act has not come into force”, stated the Court.

As such, the Court rejected the contention that the decree was not executable by the Civil Court.

The Court further stated that execution of a decree can be carried by the Court which passed the decree. It stated that the Court which passed the decree will not lose its jurisdiction to execute a decree passed by it merely because there was a subsequent alteration of the jurisdiction of the Court.

Thus, the Court ruled that the Civil Court has jurisdiction to execute a decree passed by it even after the constitution of the Waqf Tribunal.

The Court thus concluded that the Civil Court that passed the decree would not lose jurisdiction to execute the decree due to the constitution of the Waqf Tribunal. It thus directed the Executing Court to proceed with the execution.

Case Number: OP(C) NO. 177 OF 2023

Case Title: T K Makkar v Meeravu Haji

Citation: 2024 LiveLaw (Ker) 697