# Waqf No. 34-A, Ashiq Abbas Khan Revisionist v. U.P. Sunni Central Board of Waqfs, Lucknow & Ors

- **Citation:** (2021) 11 ILRA 1292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-15
- **Case number:** Civil Revision No. 45 of 2018
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waqf-no-34-a-ashiq-abbas-khan-revisionist-v-u-p-sunni-central-board-of-waqfs-46546
- **Pages:** 6

## Headnote

Waqf Act, 1995 - Section 83(8) - Execution of
any decision of the Tribunal - execution of any
decision of the Tribunal shall be made by the
civil court to which such decision is sent for
execution in accordance with the provisions of
the Code of Civil Procedure, 1908 - Tribunal
does not itself have any power to execute any
decision taken by it and is required to send the
same for execution in accordance with the
provisions of the Code of Civil Procedure to the
civil court (Para 12)

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 - Board did
not perform its part of the contract - Suit for
specific performance of contract was instituted,
which was decreed on 20.01.2001 - Execution Case
was filed before civil court for executing the
aforesaid decree - Civil Judge transferred the
records of the Execution Case to the U.P. Waqf
Tribunal
Lucknow
in
view
of
the
general
Administrative Order of the High Court whereby it
was directed that all matters pertaining to the
Waqf to be transferred to the Tribunal - Tribunal
returned back the records for execution by the civil
court in view of the provisions of S. 38 CPC & S. 83
of the Waqf Act, 1995 - Held - order passed by the
civil court transferring the records of the execution
case to the U.P. Waqf Tribunal merely on the basis
of the orders of the Registrar General & District
Judge on the Administrative side, which were
general orders, which was not specifically with
regard to execution of any decree, is without any
application of judicial mind, and unsustainable -
generally speaking no doubt - Tribunal was
justified in transferring the records of Execution
Case back to the civil court for execution which
does not suffer from any error (Para 17)

Dismissed. (E-5)
11 All. Waqf No. 34-A, Ashiq Abbas Khan Vs. U.P. Sunni Central Board of Waqfs, Lucknow & Ors.
1293

## Text

1292 INDIAN LAW REPORTS ALLAHABAD SERIES
supplementary report on record shows that no
spermatozoa was found. In this way, the medical
evidence does not support the version of
prosecutrix at all.

23. In view of above, we are of the
considered opinion that learned trial court
rightly appreciated the evidence on record, the
evidence produced by the prosecution does not
inspire confidence as held by learned trial Judge.
We cannot take a different view from that of
taken by learned trial Judge. We also do not find
any infirmity in the impugned judgment and
order regarding the role of accused-Raj Kumari.

24. It is made clear that no argument is
submitted by learned AGA regarding the role of
respondent Anil Kumar, since he has passed
away during the pendency of this appeal.

25. Therefore, in view of above discussion,
facts and circumstances of the case, we have no
other option, but to concur with the findings
recorded by learned trial court. The appeal is
liable to be dismissed.

26. Hence, the appeal sans merit and is
dismissed.

27. We are thankful to Shri Ashwini
Prakash Tripathi, learned AGA for the State of
UP and Shri Arvind Kumar, learned counsel for
the accused respondents for ably assisting the
Court.
----------
(2021)12ILR A1292
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.12.2021

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 45 of 2018

Waqf No. 34-A, Ashiq Abbas Khan ...Revisionist
Versus
U.P. Sunni Central Board of Waqfs, Lucknow &
Ors. ...Opposite Parties

Counsel for the Revisionist:
Yogesh Kesarwani, Dharmendra Kumar Bhatt,
Yogesh Kesarwani

Counsel for the Opposite Parties:
Mohd. Shakeel

Waqf Act, 1995 - Section 83(8) - Execution of
any decision of the Tribunal - execution of any
decision of the Tribunal shall be made by the
civil court to which such decision is sent for
execution in accordance with the provisions of
the Code of Civil Procedure, 1908 - Tribunal
does not itself have any power to execute any
decision taken by it and is required to send the
same for execution in accordance with the
provisions of the Code of Civil Procedure to the
civil court (Para 12)

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 - Board did
not perform its part of the contract - Suit for
specific performance of contract was instituted,
which was decreed on 20.01.2001 - Execution Case
was filed before civil court for executing the
aforesaid decree - Civil Judge transferred the
records of the Execution Case to the U.P. Waqf
Tribunal
Lucknow
in
view
of
the
general
Administrative Order of the High Court whereby it
was directed that all matters pertaining to the
Waqf to be transferred to the Tribunal - Tribunal
returned back the records for execution by the civil
court in view of the provisions of S. 38 CPC & S. 83
of the Waqf Act, 1995 - Held - order passed by the
civil court transferring the records of the execution
case to the U.P. Waqf Tribunal merely on the basis
of the orders of the Registrar General & District
Judge on the Administrative side, which were
general orders, which was not specifically with
regard to execution of any decree, is without any
application of judicial mind, and unsustainable -
generally speaking no doubt - Tribunal was
justified in transferring the records of Execution
Case back to the civil court for execution which
does not suffer from any error (Para 17)

Dismissed. (E-5)
11 All. Waqf No. 34-A, Ashiq Abbas Khan Vs. U.P. Sunni Central Board of Waqfs, Lucknow & Ors.
1293
(Delivered by Hon'ble Rajan Roy, J.)

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
decreeed 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 limiation. 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 Judgement 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
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
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 performance was
instituted by the predecessor in interest of
respondents no. 2 to 6 in 1981. It is an admitted
factual position that the objections of the
revisionist- Mutwalli under Section 47 CPC
before the civil court in Execution Case No. 04
of 2001 have already been rejected as noticed
hereinabove subject of course to the proceedings
under Article 277 of the Constitution of India
which are said to be pending, if it is so.

10. According to Section 38 CPC a decree
may be executed either by the Court which
passed it, or by the Court to which it is sent for
execution. The Court also notices the provisions
of Section 37 CPC explains the expression-
'Court which passed a decree' it reads as under:-

"37. Definition of Court which
passed a decree. - The expression "Court which
passed a decree," or words to that effect, shall,
in relation to the execution of decrees, unless
there is anything repugnant in the subject or
context, be deemed to include,-

(a) where the decree to be executed
has been passed in the exercise of appellate
jurisdiction, the Court of first instance, and

(b) where the Court of first instance
has ceased to exist or to have jurisdiction to
execute it, the Court which, if the suit wherein
the decree was passed was instituted at the time
of making the application for the execution of
the decree, would have jurisdiction to try such
suit.

Explanation.-- The Court of first
instance does not cease to have jurisdiction to
execute a decree merely on the ground that after
the institution of the suit wherein the decree was
passed or after the passing of the decree, any
area has been transferred from the jurisdiction
of that Court to the jurisdiction of any other
Court; but, in every such case, such other Court
shall also have jurisdiction to execute the
decree, if at the time of making the application
for execution of the decree it would have
jurisdiction to try the said suit."

11. Now, the provisions of the Waqf Act,
1995 need to be considered. Judicial proceedings
at the Tribunal are referred in Chapter VIII of
the Waqf Act, 1995. Section 83 reads as under:-

"83. Constitution of Tribunals, etc.--
(1) The State Government shall, by notification
in the Official Gazette, constitute as many
Tribunals as it may think fit, for the
determination of any dispute, question or other
matter relating to a waqf or waqf property,
eviction of a tenant or determination of rights
and obligations of the lessor and lessee of such
property, under this Act and define the local
limits and jurisdiction of such Tribunals.

(2) Any mutawalli or person interested
in a waqf or any other person aggrieved by an
order made under this Act, or rules made
thereunder, may make an application within the
time specified in this Act or where no such time
has been specified, within such time as may be
prescribed, to the Tribunal for the determination
of any dispute, question or other matter relating
to the waqf.

(3) Where any application made under
sub-section (1) relates to any waqf property
which falls within the territorial limits of the
jurisdiction of two or more Tribunals, such
application may be made to the Tribunal within
the local limits of whose jurisdiction the
mutawalli or any one of the mutawallis of the
waqf actually and voluntarily resides, carries on
business or personally works for gain, and,
where any such application is made to the
Tribunal aforesaid, the other Tribunal or
11 All. Waqf No. 34-A, Ashiq Abbas Khan Vs. U.P. Sunni Central Board of Waqfs, Lucknow & Ors.
1295
Tribunals having jurisdiction shall not entertain
any application for the determination of such
dispute, question or other matter:

Provided that the State Government
may, if it is of opinion that it is expedient in the
interest of the waqf or any other person
interested in the waqf or the waqf property to
transfer such application to any other Tribunal
having jurisdiction for the determination of the
dispute, question or other matter relating to
such waqf or waqf property, transfer such
application to any other Tribunal having
jurisdiction, and, on such transfer, the Tribunal
to which the application is so transferred shall
deal with the application from the stage which
was reached before the Tribunal from which the
application has been so transferred, except
where the Tribunal is of opinion that it is
necessary in the interests of justice to deal with
the application afresh.

(4) Every Tribunal shall consist of -

(a) one person, who shall be a member
of the State Judicial Service holding a rank, not
below that of a District, Sessions or Civil Judge,
Class I, who shall be the Chairman;

(b) one person, who shall be an
Officer from the State Civil Services equivalent
in rank to that of the Additional District
Magistrate, Member;

(c) one person having knowledge of
Muslim law and jurisprudence, Member,

and the appointment of every such
person shall be made either by name or by
designation.

(4)(A) The terms and conditions of
appointment
including
the
salaries
and
allowances payable to the Chairman and other
Members other than persons appointed as ex
officio members shall be such as may be
prescribed.

(5) The Tribunal shall be deemed to be
a civil court and shall have the same powers as
may be exercised by a civil court under the Code
of Civil Procedure, 1908 (5 of 1908), while trying
a suit, or executing a decree or order.

(6) Notwithstanding anything contained
in the Code of Civil Procedure, 1908 (5 of 1908),
the Tribunal shall follow such procedure as may
be prescribed.

(7) The decision of the Tribunal shall
be final and binding upon the parties to the
application and it shall have the force of a decree
made by a civil court.

(8) The execution of any decision of the
Tribunal shall be made by the civil court to which
such decision is sent for execution in accordance
with the provisions of the Code of Civil Procedure,
1908 (5 of 1908).

(9) No appeal shall lie against any
decision or order whether interim or otherwise,
given or made by the Tribunal:

Provided that a High Court may, on its
own motion or on the application of the Board or
any person aggrieved, call for and examine the
records relating to any dispute, question or other
matter which has been determined by the Tribunal
for the purpose of satisfying itself as to the
correctness, legality or propriety of such
determination and may confirm, reverse or modify
such determination or pass such other order as it
may think fit."

12. Sub-section (5) of Section 83 of Waqf
Act, 1995 says that the Tribunal shall be deemed
to be a civil court and shall have the same
powers as may be exercised by a civil court
under the Code of Civil Procedure, 1908, while
trying a suit, or executing a decree or order. The
nature and scope of this provision is with regard
to conferring the status of a deemed civil court
upon the Tribunal for certain purposes i.e. for
trial of a suit or executing of a decree or order
and essential and substantially it is a provision
deeming it to be a civil court for certain
purposes. As regards execution of the decisions
of the Tribunal a separate provision is contained
in Sub-section (8) of Section 83 of the Act, 1995
which says that the execution of any decision of
the Tribunal shall be made by the civil court to
which such decision is sent for execution in
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the provisions of the Code of
Civil Procedure, 1908. Sub-section 8 of Section
83 of the Waqf Act, 1995 leaves no doubt that
the Tribunal does not itself have any power to
execute any decision taken by it and is required
to send the same for execution in accordance
with the provisions of the Code of Civil
Procedure to the civil court. If Sub-section 5 of
Section 83 of the Act, 1995 is read, understood
and applied as conferring powers upon the
Tribunal to executive any decree or order passed
by it, then, it would render Sub-section (8)
superfluous and otiose. On the other hand if
Sub-section (8) of Section 83 of the Waqf Act,
1995 is read and understood as it is on a simple
and bare reading of it, then, it will not render
Sub-section (5) of Section 83 of the Waqf Act,
1995 otiose for the reason, as already stated that,
Sub-section (5) essentially deals with the issue
of Tribunal being treated as deemed civil court
for certain purposes and it can not be understood
and applied as a provision vesting powers of
execution upon the Tribunal unless it is provided
elsewhere in the Act. Therefore, what Subsection (5) of Section 83 means is that if the
Tribunal otherwise has powers to execute a
decree or order, then, it will be deemed to be a
civil court for the said purpose also. However, if
it does not have the power to execute its
decision, which is to be treated as a decree under
Sub-section (7) of Section 83 of the Waqf Act,
1995, then, Sub-section (5) of Section 83 of the
Act, 1995 can not be pressed into the service to
confer such power of execution upon the
Tribunal.

13. Rules known as the U.P. Waqf
Tribunal Rules, 2017 have been framed under
Section 109 of the Waqf Act, 1995, but, the said
Rules do not help the casue of the revisionist, as,
they only provide for payment of Court fee on
an application for exectuion as prescribed by the
Court Fees Act, 1870 which obvisouly has to be
sent to the civil court for execution as already
discussed.

14. As regards the provisions of Section 37
and the explanation of the term 'Court which
passed a decree' as contained in Clause- (b)
thereof which says that where the Court of first
instance has ceased to exist or to have
jurisdiction to execute it, the Court which, if the
suit wherein the decree was passed was
instituted at the time of making the application
for the execution of the decree, would have
jurisdiction to try such suit, as, the Waqf
Tribunal does not have the jurisdiction in the
first place to execute such decree or decision,
therefore, this provision does not make any
difference to the legal or factual position in this
case. If the Tribunal had the jurisdiction to
execute the decree, then, of course this
provisions would have relevance.

15. Shri Yogesh Kesarwani, learned
counsel for revisionist could not point out any
such provision under which the Waqf Tribunal
had the power to execute a decree passed by the
civil court.

16. Based on a conjoint and harmonious
reading and interpretation of the aforesaid
provisions, this Court concludes that the
Tribunal does not have the power to execute its
decisions and has to send the same to the civil
court for execution in accordance with the
provisions of the Code of Civil Procedure.

17. Now, having said so, this Court is of
the opinion that the order passed by the civil
court on 17.02.2018 transferring the records of
the execution case no. 04 of 2001 to the U.P.
Waqf Tribunal merely on the basis of the orders
of the Registrar General and the District Judge
on the Administrative side which were general
orders and not specifically with regard to
execution of any decree without any application
of
judicial
mind,
was
incorrect
and
unsustainable. Generally speaking no doubt after
coming into force of the Waqf Act, 1995 all
matters where there is a dispute relating to Waqf
11 All. Ashok Kumar Awasthi & Anr. Vs. Sri Morar Bhai Thakkar & Ors.
1297
have to be transferred to the Waqf Tribunal for
adjudication, but, in a case where the decree has
been passed and execution is going on before the
civil court, the question to be considered was as
to whether the Tribunal has power to execute
such decree which as stated hereinabove it does
not have, but, this aspect of the matter was not
considered. No doubt the order dated 17.02.2018
was not challenged by the respondents herein
but then the question involved herein is one of
the jurisdiction and merely because it was not, it
can not confer jurisdiction upon the Tribunal to
execute the decree dated 20.01.2001. In this
view of the matter we hold that the Tribunal was
justified and correct in transferring the records
of Execution Case No. 4 of 1981 back to the
civil court for execution by its order dated
20.06.2018, which does not suffer from any
error.

18. Whether the civil court had jurisdiction
to pass the decree dated 20.01.2001 or not was
raised an objection by the revisionist-Mutawalli
under Section 47 CPC before the civil court
when the decree was being executed by it and
the same has already been rejected, against
which a petition under Article 227 of the
Constitution of India is pending, therefore,
subject to whatever orders have been passed in
those proceedings under Article 227 of the
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
dated 20.06.2018 passed by the Waqf Tribunal,
as, it is the civil court which passed the decree
which has the jurisdiction to execute it.

19. The Court asked the learned counsel as
to what is the practice for the parties in the Waqf
Tribunal whether the decisions taken by it are
executed by it or sent to the civil court learned
counsel very fairly informed the Court that they
are sent to the civil court for execution but also
sated that the civil court does not execute the
same for some reason. The Court has now
cleared the legal position, therefore, hopefully
this will be adhered.

20. Seciton 37 will not come in the way of
exectuion of decisons taken by the Waqf
Tribunal which has the force of decree of a civil
court under Sub-section (7) of Section 83 in
view of the specific stipulation contained in
Section 83(8) of the Act, 1995 which has been
discussed hereinabove and the civil court will be
obliged to execute such decisions of the Waqf
Tribunal, if they are sent for execution.

21.

The
revision
is,
accordingly,
dismissed.
----------
(2021)12ILR A1297
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 139 of 2019

Ashok Kumar Awasthi & Anr. ...Revisionists
Versus
Sri Morar Bhai Thakkar & Ors. ...Respondents

Counsel for the Revisionists:
Sri Harsh Vikram, Sri Dharm Vir Jaiswal

Counsel for the Respondents:
Sri Hari Manish Bahadur Sinha

Civil Procedure Code,1908 - Sections 92 & 115
- Public Charities - Suit against public trust -
Leave to file suit - Grant of - revision u/s 115
CPC against order granting leave under Section
92 CPC - Held - an order granting leave under
Section 92 CPC is not revisable since an order
does not decide any rights of parties and is
made at the stage before the suit comes into
being - it is open to the revisionist to apply for
revocation of leave to the Court that has made
the order impugned and if that application is
made, the Trial Court would be bound to