<VPHC010202002025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI CIVIL REVISION PETITION NO: 1006 OF 2025 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 of 2021 in O.S.No. 435 of 2017 on the file of Principal Senior Civil Judge Court, at Kurnool, Kurnool District. Between: 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. ...Petitloner/Petitioner/1^* Judgment Debtor/Defendant AND 1. S.Nisar Ahmed (Died) 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. ...Respondent/Respondent/Decree Holder/Plaintiff Syed Hussain Basha, S/o.Late Syed Ahmed Hussain, aged about 68 years. Mechanic, R/o.H.No.34/83, Budhawarapeta, Kurnool. S.A.Farooq, S/o.S.A.Gafoor, aged about 45 years. Hardware Business, Chanigu Masjid, Kurnool. 2. 3. 4. 5. Nagaraj, S/oJayaram, Welder, Budhawarapeta, Kurnool. 6. I.Narayana, S/o.Pullam Shop No.46/86. Near G.G.Hospital. . ^ 50 years, Shop No.46/87 ainter, Near G.G.Hospital, Budhawarapeta, Kurnool. ■..Respondents/Respondents/Judgment Debtors/Defendants jA NO: 1 OF ?noi^ Petition filed under Section stated in the affidavit filed i 151 CPC praying that in the circumstances in support of the petition, the High Court may be proceedings in E.P.No.134 of 2021 filed in on the file of Principal Senior Civil pleased to grant stay of further O.S.No.435 of 2017 Judge Court, at Kurnool, pending disposal of the above Civil Revision Petition. jA NO: 2 OF ?n9x; a I avit filed in support of the petition, the High Court pleased to receive the additional and parcel of the above Civil Revision lA NO: 3 OF 9091^ Between; may be petitioner, as part documents on behalf of Petition. 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 1. M.Abdul Moiz Khan, years, R/o.H.No.58/92-E.Fort, Khanderi ...Respondent/Petitioner/1 S/o.Late M.Abdul Hafez Khan, Street, Kurnool. aged about 72 Judgment Debtor 2. S.Nisar Ahmed (Died) ...Respondents No.1/1 St Decree Holder 3. Syed Hussain Basha, S/o.Late Syed Ahmed Hussain years, Mechanic, R/o,H.No.34/83, Budhawarape.a, Kurnocl 4. SAFarooq, S/o.S.A.Gafoor, Business, Chanigu Masjid, Kurnool 5. Nagaraj, S/oJayaram, ' Budhawarapeta, Kurnool. 6. I.Narayana, S/o.Pullam Painter, Near G.G.Hospital, aged about 68 aged about 45 years. Hardware Welder, Shop No.46/86, Near G.G.Hospital, Rao, aged about 50 Budhawarapeta, Kurnool. years. Shop No.46/87 -Respondents/Respondents/Judgme nt Debtors Petition filed under Section stated in the affidavit filed i 151 CPC praying that in the cicircumstances may be passed in I.A.No.1 of Civil Revision Petition - 'n support of the petition, the High Court J Order dated 17.04.2025 of 2025 and dismiss the above pleased to vacate the Interim 2025 in C.R.P.No.1006 with exemplary costs. Counsel for the Petitioner: Counsel for the Respondent Counsel for the Respondent The Court made the following: Sri IVI.R.S. Srinivas No.2: Sri Masalegar Hidayath Nos.3 to 6:- ulla IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) APHC010202002025 [3311] Monday, the twenty third day of June, two thousand and twenty five Present The Honourable Ms. Justice B. S. Bhanumathi Civil Revision Petition No.1006 of 2025 Between; ...Petitioner M. Abdul Moiz Khan and ...Respondents S. Nisar Ahmed (died) and Others Counsel for the petitioner; I.M.R.S.Srinivas Counsel for the respondent(S); I.Masalegar Hidayathulla The Court made the following; 2 BSB, J C.R.P.No.lOOBof 2025 ORDER: 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 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 O.S.No.435 of 2017, passed against the petitioner in-executable decree, as the 2^'" respondent / D.Hr.2 is not at all notified Mutawalli of Sulthan-e-Mosque, Kothapeta, Kurnool. 2. The case of the revision petitioner, is briefly, as follows: 2024 in dated 08.04.2021 in and other J.Drs., as The suit in O.S.No.435 of 2017 vacant possession of the suit schedule was filed seeking delivery of 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 in O.S.No.435 of 2017. 11.02.2025, 3. The J.Dr. No.1 filed counter in the E.P. stating that the decree was passed by the trial Court on 08.04.2021 and that he had filed a petition under Section 5 of the Limitation delay in filing the set aside petition against ex parte Act for condoning the 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 against the J.Dr. No.1 and as such, O.S.No.435 of 2017 Hyderabad, is pending was filed \ 3 BSB, J C.R.P.No.1006 of 2025 suppressing the fact of the suit pending before the Waqf Tribunal. 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 Court ordered for delivery of property in the E.P. to the D.Hr. No.2 on payment of process by 15.04.2024. Aggrieved by the order, J.Dr. No.1 filed E.A.No.107 of 2024 for declaration of the decree dated 08.04.2021 as inexecutable. The contentions of J.Dr.No.1, are briefly, as follows: 4. The D.Hr.1 / respondent No.1 is Mutawalli of the mosque and he is only the competent person for filing the suit, but, the D.Hr. No.2, without having any right, described himself as Nayab Mutawalli of the mosque. During the course of proceedings before the trial Court, D.Hr. No.1 died. Though, the D.Hr. No.2 was not declared as Mutawalli, he filed the E.P. without having right. Further, the proceedings are pending before the Waqf Tribunal regarding the same dispute. The D.Hr. No.2 filed counter in the E.A. stating briefly as follows: 5. The petitioner had not filed the petition to set aside decree in the suit along with a petition to condone the delay. After the death of D.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, and the same was published in the A.P. Gazette on 10.10.2018 and the same were marked as Ex.A9 and Ex.AIO in the suit. Therefore, the J.Dr. No.1 has no grounds to file the petition questioning the executability. After hearing both sides, the execution Court dismissed the E.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, 6. 4 BSB, J C.R.P.No.1006 of 2025 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 stated that the petitioner / J.Dr. No.1 is not permitted to canvas that the decree passed in the suit is inexecutable. The learned counsel for the petitioner mainly contended that the Civil Court has no jurisdiction in view of Section 85 of the Waqf Act, 1995 since after its amendment in 2013, dispute as to eviction of tenant is also covered by the jurisdiction of the Tribunal and Civil Court has no 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 to be Mutawalli did not have capacity to file the suit as on that day there was no declaration of Mutawalli as admittedly such declaration was made pending the suit. 8. 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 Court to decide the executability of decree on the question of lack of jurisdiction. 9. / / 10. Though the grounds raised in the petition were different from the specific ground of lack of jurisdiction argued before this Court, lack of jurisdiction to pass a decree goes to the root of the matter and can be 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 5 BSB,J C.R.P.No.1006 of 2025 on the ground of lack of jurisdiction, to be answered. However, Since it is a legal aspect, it needs was not dealt with in the necessary to rerhand to pass the executability of the decree. On deciding the said question, the other grounds pale into insignificance. as the same impugned order, this Court is of the view that it i the matter to deoide IS on the question of laok of jurisdiction \ decree and consequently, the 11. 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 the question of executability of the decree i 85 of the Waqf Act, 1995, on in the light of Sections 83 & as amended in the year 2013 and pass orders afresh. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. Sd/- K SRINIVASA RAJU assistant registrar //TRUE COPY// 1^ To, SECTION OFFICER 1 ■ The Principal Civil ■'“'^3® {Senior Division), Kurnool, C to Sri M.R.S.Srinivas, Advocate [OPUC] . One CC to Sri Masalegar Hidayathulla, Advocate [OPUCJ 4- The Section Officer, “ ^ Amaravati. Kurnool District. ER Section, High Court of Andhra Pradesh at 5. The Section Officer, at Amaravati 6. Two CD Copies CRP Filing Section, High Court of Andhra Pradesh BSV sree if >sr' HIGH COURT DATED:23/06/2025 \ ORDER CRP NO. 1006 OF 2025 ALLOWING THE CIVIL REVISION PETITION BY REMANDING BACKTHE MATTER WITHOUT COSTS