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2025 DIGILAW 458 (KER)

Meeravu Haji, S/o Oorai v. T K Makkar S/o Karrorkutty

2025-03-05

KAUSER EDAPPAGATH

body2025
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. 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 Civil Court would continue as a rightful forum for the adjudication of the waqf disputes. It was further found that in the absence of a provision in the Waqf Act 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. It was further found that in the absence of a provision in the Waqf Act 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. Accordingly, the contention of the judgment debtors that the decree was not executable was rejected. The very same point is now sought to be reagitated in this review petition. 5. The suit was filed on 22/8/1996 after coming into force of the Waqf Act, 1995 on 1/1/1996. The Waqf Tribunal was constituted by the State Government as per GO dated 8/12/1998. The suit was decreed on 31/8/2000. The learned Senior Counsel for the review petitioner Sri. Krishnanunni submitted that though there is no provision in the Waqf Act, 1995 to transfer the suit instituted before the Civil Court regarding a waqf property, by operation of the bar created under Section 85, the Munsiff Court, Muvattupuzha which tried the suit ceased to have jurisdiction to try the same on the date when the Waqf Tribunal started to exercise jurisdiction at Ernakulam. The learned counsel further submitted that if at all the institution of the suit at the Munsiff Court was treated as valid, in the light of commencement of functioning of the Waqf Tribunal on a subsequent date, the said court ceased to have jurisdiction to keep the same on its files after the commencement of the functioning of the Waqf Tribunal during 1998 and hence the Munsiff Court ought to have returned the plaint to present the same before the Waqf Tribunal for trial and disposal. Reliance was placed on Inacio Martins v. Narayan Hari Naik and Others ( AIR 1993 SC 1756 ). The learned Senior Counsel also submitted that the decree sought to be executed is a nullity inasmuch as it was passed by a court which had no inherent jurisdiction to try the suit, a question of jurisdiction of the court unrelated to the rights of the parties to a previous suit would not operate as res judicata in subsequent proceedings between the same parties and, as such, the executability of the decree can be raised in the Execution Petition. Reliance was placed on Mathura Prasad Sarjoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy ( AIR 1971 SC 2355 ). 6. Reliance was placed on Mathura Prasad Sarjoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy ( AIR 1971 SC 2355 ). 6. There cannot be any doubt regarding the proposition that the validity of a decree can be challenged in an Execution Petition on the ground that the court which passed the decree lacks inherent jurisdiction to try the suit. But the crucial question is whether the Munsiff Court, Muvattupuzha, which passed the decree, had jurisdiction or not. The very same contention now raised by the review petitioners in this review petition that though there is no provision in the Waqf Act, 1995 to transfer the suit instituted before the Civil Court regarding a waqf property, by operation of the bar created under Section 85, the Munsiff Court, Muvattupuzha which tried the suit ceased to have jurisdiction to try the same on the date when the Waqf Tribunal started to exercise jurisdiction at Ernakulam was raised in OP(C) No.177/2023, and it was decided against the review petitioners. In paragraph 8 of the impugned judgment, a specific question was raised - whether the Civil Court/trial court lacked inherent jurisdiction to entertain and try the suit and the decree passed by it is a nullity? In paragraph 9, another specific question was raised - what is the position of the suits or other proceedings instituted during the interregnum between the commencement of the Act and the constitution of the Tribunal? After elaborately considering the various provisions of the Waqf Act, 1995 including Sections 7(5) and 85, the similar provisions for the transfer of pending cases in several other Central and State enactments wherein an exclusive Tribunal is created for the purpose of dealing with specified matters and also case laws, this Court found that in the absence of a provision in the Waqf Act to transfer the pending suit to Waqf Tribunal, the Civil Court has jurisdiction to adjudicate a pending suit despite the bar under Section 85. The decision in Inacio Martins (supra) cannot be applied to the facts of the present case. The issue involved in the said decision related to the applicability of a provision barring the jurisdiction of the Civil Court introduced in the statute by way of the amendment during the pendency of a suit on pending litigation. The decision in Inacio Martins (supra) cannot be applied to the facts of the present case. The issue involved in the said decision related to the applicability of a provision barring the jurisdiction of the Civil Court introduced in the statute by way of the amendment during the pendency of a suit on pending litigation. The question involved here is the legal status of the suits or other proceedings instituted during the interregnum between the commencement of the Waqf Act and the constitution of the Waqf Tribunal. 7. It is settled that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. The power of review should not be confused with the appellate powers. The power of review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC (See Arun Dev Upadhyaya v. Integrated Sales Services Ltd. 2023 KHC 6679 ). Order 47 Rule 1 contemplates the circumstances in which a court can review its earlier decision. The power of review can be exercised on three grounds; (i) From the discovery of a new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the review petitioner or could not be produced by him at the time when the decree was passed; (ii) On account of some mistake or error apparent on the face of record; (ii) For any other sufficient reason. The review petitioners do not have a case that the review has been sought on the discovery of a new or important matter or evidence. As stated already, merely because a decision is wrong is not a ground to review an earlier decision. There must be an error apparent on the face of the record to review an earlier decision. The very same contention regarding the jurisdiction of the Munsiff Court, Muvattupuzha, which passed the decree, raised earlier and decided against the review petitioners, is now sought to be reconsidered under the guise of a review. The court dealing with an application for reviewing an earlier decision does not sit as an appellate court over the earlier decision. There is absolutely no error apparent on the face of the record. The court dealing with an application for reviewing an earlier decision does not sit as an appellate court over the earlier decision. There is absolutely no error apparent on the face of the record. The expression “any other sufficient reason” means a reason sufficient on grounds at least analogous to those specified in the Rule ( Moran Mar Basselios Catholicos and Another v. Most Rev. Mar Poulose Athanasius and Others AIR 1954 SC 526 ). That apart, no other sufficient reason has been shown in the review petition. For the reasons stated above, I hold that the review petitioners failed to make out a case for reviewing the impugned judgment. Accordingly, the review petition is dismissed.