M. Abdul Moiz Khan Vs S. Nisar Ahmed(Died)

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<VPHC010202002025

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 1006 OF 2025

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Petition filed under Section 115 of CPC, aggrieved by the Order dated 11-02-2025 passed in E.A No.107 of 2024 in E.P No.134^of2021 in O.S.No. 435 of 2017 on the file of Principal Senior Civil Judge Court, at Kurnool, Kurnool District.

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Between:

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M.Abdul Moiz Khan, S/o.Late M.Abdul Hafez Khan, aged about 72 years, R/o.H.No.58/92-E.Fort, Khanderi Street, Kurnool.

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...Petitloner/Petitioner/1^* Judgment Debtor/Defendant

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AND

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S.Nisar Ahmed (Died)

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S.Noor Ahmed, S/o.Late S.Nazeer Ahmed, aged about 70 years, Nayab Muthavalli of Sulthania Mosque, R/o.D.No.41/305, Kothapeta,^Kurnool.

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...Respondent/Respondent/Decree Holder/Plaintiff

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Syed Hussain Basha, S/o.Late Syed Ahmed Hussain, aged^about68 years. Mechanic, R/o.H.No.34/83, Budhawarapeta, Kurnool.

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S.A.Farooq, S/o.S.A.Gafoor, aged about 45 years. Hardware Business, Chanigu Masjid, Kurnool.

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Nagaraj, S/oJayaram, Welder, Shop No.46/86. Near G.G.Hospital.

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Budhawarapeta, Kurnool.

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I.Narayana, S/o.Pullam . ^ 50 years, Shop No.46/87 ainter, Near G.G.Hospital, Budhawarapeta, Kurnool.

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■..Respondents/Respondents/Judgment Debtors/Defendants

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jA NO: 1 OF ?noi^

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Petition filed under Section 151 CPC praying that in the circumstances stated in the affidavit filed i in support of the petition, the High Court may be pleased to grant stay of further proceedings in E.P.No.134 of 2021 filed in O.S.No.435 of 2017 on the file of Principal Senior Civil Judge Court, at Kurnool, pending disposal of the above Civil Revision Petition.

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jA NO: 2 OF ?n9x;

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a I avit filed in support of the petition, the High Court may be pleased to receive the additional documents on behalf of petitioner, as part and parcel of the above Civil Revision Petition.

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lA NO: 3 OF 9091^

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Between;

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S.Noor Ahmed, S/o.Late S.Nazeer Ahmed, aged about 70 years, Nayab Mutavall, of Sulthania Mosque, R/o.D.No.41/305, Kothapeta, Kurnool. ■ ■.Petitioner/Respondent No.2/2"‘' Decree Holder AND

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M.Abdul Moiz Khan, S/o.Late M.Abdul Hafez Khan, aged about 72

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years, R/o.H.No.58/92-E.Fort, Khanderi Street, Kurnool.

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...Respondent/Petitioner/1

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Judgment Debtor

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S.Nisar Ahmed (Died)

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...Respondents No.1/1 St Decree Holder

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Syed Hussain Basha, S/o.Late Syed Ahmed Hussain aged about 68

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years, Mechanic, R/o,H.No.34/83, Budhawarape.a, Kurnocl

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SAFarooq, S/o.S.A.Gafoor, aged about 45 years. Hardware

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Business, Chanigu Masjid, Kurnool

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Nagaraj, S/oJayaram, Welder, Shop No.46/86, Near G.G.Hospital,

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Budhawarapeta, Kurnool.

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I.Narayana, S/o.Pullam Rao, aged about 50 years. Shop No.46/87

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Painter, Near G.G.Hospital, Budhawarapeta, Kurnool.

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-Respondents/Respondents/Judgme nt Debtors

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Petition filed under Section 151 CPC praying that in the circumstancesci stated in the affidavit filed i - 'n support of the petition, the High Court pleased to vacate the Interim may be J Order dated 17.04.2025 passed in I.A.No.1 of 2025 in C.R.P.No.1006 of 2025 and dismiss the above Civil Revision Petition with exemplary costs.

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Counsel for the Petitioner: Sri IVI.R.S. Srinivas

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Counsel for the Respondent No.2: Sri Masalegar Hidayath ulla Counsel for the Respondent Nos.3 to 6:-

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The Court made the following:

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APHC010202002025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3311] (Special Original Jurisdiction)

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Monday, the twenty third day of June, two thousand^{andtwentyfive}

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Present

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The Honourable Ms. Justice B. S. Bhanumathi

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Civil Revision Petition No.1006 of 2025

Between;

M. Abdul Moiz Khan

...Petitioner

and

S. Nisar Ahmed (died) and Others

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...Respondents

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Counsel for the petitioner;

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I.M.R.S.Srinivas

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Counsel for the respondent(S);

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I.Masalegar Hidayathulla

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The Court made the following;

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2

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BSB, J C.R.P.No.lOOBof 2025

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ORDER:

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The civil revision petition is filed under Section 115 of C.P.C. against the order dated 11.02.2025 dismissing E.A.No.107 of 2024 in E.P.No.134 of 2021 in O.S.No.435 of 2017 on the file of the Court of the Principal Senior Civil Judge, at Kurnool, filed by the petitioner / J.Dr.1 under Section 47 of C.P.C. to declare the decree dated 08.04.2021 in O.S.No.435 of 2017, passed against the petitioner and other J.Drs., as in-executable decree, as the 2^'" respondent / D.Hr.2 is not at all notified Mutawalli of Sulthan-e-Mosque, Kothapeta, Kurnool.

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The case of the revision petitioner, is briefly, as follows:

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The suit in O.S.No.435 of 2017 was filed seeking delivery of vacant possession of the suit schedule property from the defendants. The revision petitioner herein is the defendant No.1 in the suit. The plaintiffs further prayed the trial Court to grant damages @ Rs.25,000/per month from the defendant No.1 / revision petitioner from 01.12.2015 to 31.07.2017 as he was in un-authorized occupation of the suit schedule property during such period. A decree dated 08.04.2021, was passed in favour of the plaintiffs. The plaintiffs filed E.P.No.134 of 2021 in the suit for execution of the decree and judgment, dated 11.02.2025, in O.S.No.435 of 2017. 3. The J.Dr. No.1 filed counter in the E.P. stating^thatthe ex parte decree was passed by the trial Court on 08.04.2021 and that he had filed a petition under Section 5 of the Limitation Act for condoning the delay in filing the set aside petition against ex parte decree and the same needs to be decided on merits, and further that O.S.No.95 of 2015 on the file of the A.P. Waqf Tribunal Hyderabad, is pending against the J.Dr. No.1 and as such, O.S.No.435 of 2017 was filed \

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BSB, J C.R.P.No.1006 of 2025

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suppressing the fact of the suit pending before the^{WaqfTribunal.} Thus, the D.Hrs are not entitled to take delivery of the property by^virtue of the ex parte decree and judgment. However, the trial^Courtordered for delivery of property in the E.P. to the D.Hr. No.2^onpaymentof process by 15.04.2024.

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Aggrieved by the order, J.Dr. No.1 filed E.A.No.107^of2024for declaration of the decree dated 08.04.2021 as inexecutable. The contentions of J.Dr.No.1, are briefly, as follows:

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The D.Hr.1 / respondent No.1 is Mutawalli of the mosque^andhe is only the competent person for filing the suit, but,^theD.Hr. No.2, without having any right, described himself as Nayab^{Mutawalliofthe} mosque. During the course of proceedings before the^{trialCourt,D.Hr.} No.1 died. Though, the D.Hr. No.2 was not declared^{asMutawalli,he} filed the E.P. without having right. Further, the proceedings^arepending before the Waqf Tribunal regarding the same dispute.

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The D.Hr. No.2 filed counter in the E.A. stating briefly^asfollows:

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The petitioner had not filed the petition to set aside^decreeinthe suit along with a petition to condone the delay. After^{thedeathofD.Hr.} No.1 during the pendency of the suit, D.Hr.No.2 obtained^appointment vide proceedings of CEO of Waqf Board, dated 30.08.2018,^andthe same was published in the A.P. Gazette on 10.10.2018^andthesame were marked as Ex.A9 and Ex.AIO in the suit. Therefore,^theJ.Dr.No.1 has no grounds to file the petition questioning the^{executability.}

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After hearing both sides, the execution Court dismissed^theE.A. stating that J.Dr. No.1 had not proved that the D.Hr. No.2 was not notified as Mutawalli of the Sulthan-e-Mosque, Kothapeta, Kurnool,

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BSB, J C.R.P.No.1006 of 2025

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/ /

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further that J.Dr.No.1 had not even provided petition number filed by him to set aside the ex parte decree. Since the ex parte decree was not set aside as the same holds good, the execution Court^{statedthatthe} petitioner / J.Dr. No.1 is not permitted to canvas that the decree passed in the suit is inexecutable.

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The learned counsel for the petitioner mainly contended^thatthe Civil Court has no jurisdiction in view of Section 85 of the Waqf Act, 1995 since after its amendment in 2013, dispute as^{toevictionoftenant} is also covered by the jurisdiction of the Tribunal^{andCivilCourthasno} jurisdiction which is expressly ousted by Section 85 of the Waqf Act. He further contended that if there is no jurisdiction to Civil Court, even if a decree is passed, it is null and void and non est and^{non-executable.He} further submitted that the plaintiff No.2 who claims^{tobeMutawallidid} not have capacity to file the suit as on that day there^{wasnodeclaration} of Mutawalli as admittedly such declaration was made pending the suit.

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The learned counsel for the respondent contended that maintainability of the suit on the basis of lack of jurisdiction was not raised before the execution Court nor was it answered by the execution Court, the matter may be remanded back to the trial^{Courttodecidethe} executability of decree on the question of lack of jurisdiction. 10. Though the grounds raised in the petition were^{differentfromthe} specific ground of lack of jurisdiction argued before^{thisCourt,lackof} jurisdiction to pass a decree goes to the root of the^{matterandcanbe} decided in an application under Section 47 C.P.C. and it cannot be ignored. That apart, though it was not expressly and specifically mentioned in the petition and argued before the execution Court, the petition states the facts necessary to challenge the validity of the decree

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BSB,J C.R.P.No.1006 of 2025

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\

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if

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on the ground of lack of jurisdiction, Since it is a legal aspect, it needs to be answered. However, as the same was not dealt with in the impugned order, this Court is of the view that it ISi necessary to rerhand the matter to deoide on the question of laok of jurisdiction to pass the decree and consequently, the executability of the decree. On deciding the said question, the other grounds pale into insignificance.

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In the result, the revision petition is allowed setting aside the order, dated 11.02.2025, dismissing E.A,No.107 of 2024 in E.P.No.134 of 2021 in O.S.No.435 of 2017 and the matter is remanded to the execution Court for hearing the petition in E.A.No.107 of 2024 afresh on the question of executability of the decree i in the light of Sections 83 & 85 of the Waqf Act, 1995, as amended in the year 2013 and pass orders afresh.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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To,

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1 ■ The Principal Civil ■'“'^3® {Senior Division), Kurnool, Kurnool District. C to Sri M.R.S.Srinivas, Advocate [OPUC] . One CC to Sri Masalegar Hidayathulla, Advocate [OPUCJ 4- The Section Officer, “ ^ Amaravati. ER Section, High Court of Andhra Pradesh at 5. The Section Officer, CRP Filing Section, High Court of Andhra Pradesh at Amaravati 6. Two CD Copies BSV

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sree

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