Civil courts can execute decrees despite Waqf Tribunal's formation: Kerala High Court

The Kerala High Court recently held that civil courts have the authority to enforce its decrees concerning waqf disputes regardless of Waqf Tribunal’s establishment [TK Makkar & ord v Meerav Haji & ors]

Justice Kauser Edappagath said that even though the tribunal was constituted, it does not bar the civil court's jurisdiction to execute decrees relating to waqf disputes which were initiated before the tribunal was established.

"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," the Court said.

It referred to an observation made in 1872 by the Privy Council which said,

"The difficulties of a litigant in India begin when he has obtained a decree."

The High Court noted that the present case was a clear example of that sentiment as the decree in this was issued in the year 2000 in a suit filed in 1996, which was still awaiting execution, with even the question of the proper forum for executing it remaining unresolved.

In this case, the petitioners had sought legal recognition and control over the Kuttilanji Muslim Mosque registered with the Kerala State Waqf Board.

They alleged that the respondents had unlawfully formed a committee to assume administrative control over the mosque.

The petitioners filed a suit in 1996 for declaration, permanent injunction and possession recovery.

When the suit was initiated, the Waqf Tribunal had not yet been constituted in Kerala. It was established later during the pendency of the suit.

After the tribunal was constituted, the respondents contested the civil court’s jurisdiction citing Section 85 of the Waqf Act 1995 (Act).

They argued that the said provision removed the civil court’s authority once the tribunal was formed.

Section 85 of the Act prevents civil courts, revenue courts,\ and other authorities from taking legal action on matters related to waqf property, disputes, questions and other issues that must be determined by a tribunal.

However, the trial court ruled in favour of the petitioners, awarding them control over the mosque and barred the respondents from managing it. The decree was upheld on appeal becoming final in 2016.

When the petitioners sought to execute this decree in the civil court (executing court), the court cited Section 37(b) of the Code of Civil Procedure (CPC) and ordered the petitioners to file execution petition before the proper court, asserting that only the Waqf Tribunal could execute the decree.

Aggrieved by the order, the petitioners approached the Kerala High Court.

The High Court noted that the executing court had incorrectly interpreted Section 37(b) of CPC as it overlooked Section 38 and Order XXI Rule 10 of the CPC which explicitly permits a decree to be executed either by the court that issued it or by any court to which it has been transferred for execution.

The Court further observed that Section 7(5) of the Act ensures that pre-existing cases which were instituted in civil courts before the tribunal was constituted would remain under civil court jurisdiction even after the Waqf Tribunal became operational.

Thus, the Court highlighted that even though the tribunal was constituted, there was no bar on the civil court's jurisdiction to execute decrees relating to waqf disputes which were initiated before the tribunal was instituted.

"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. The finding of the Executing Court in Ext.P7 to the contrary that by the establishment of the Waqf Tribunal, it lacks jurisdiction to execute the decree cannot be sustained," the Court added.

In conclusion, the Court directed the executing court to proceed with enforcing the decree within three months.

The petitioners were represented by advocates Vaisakhi V, Babu Karukapadath, MA Vaheeda Babu, PU Vinod Kumar, Arya Raghunath, TM Muhammed Musthaq, Ajwin P Lalson, Karukapadath Wazim Babu, P Lakshmi, Aysha EM, Dennis Biju, Abuasil AK, Shawn Johnson, Manu Krishna SK and PK Abdul Rahiman.

Advocates MA Ahammed Saheer, TM Abdul Latheef, MM Aliyar, EA Haris, Muhammed Yasil, Nithin AR and Jamsheed Hafiz appeared for the respondents.

[Read Judgment]