MUMTAZ YARUD DOWLA WAKF versus M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.

Citation: [2023] 15 S.C.R. 984 · Decided: 20-10-2023 · Supreme Court of India · Bench: M.M. SUNDRESH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2023] 15 S.C.R. 984 : 2023 INSC 949
984
CASE DETAILS
MUMTAZ YARUD DOWLA WAKF
v.
M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.
(Civil Appeal No. 6933 of 2023)
OCTOBER 20, 2023
[M. M. SUNDRESH AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Objection raised by the respondents that the 
suit fi led by the appellant as decreed, ought not to have been entertained 
by the Wakf Tribunal, was dismissed by the Executing Court. High Court, 
whether justifi ed in reversing the decision of the Executing Court by placing 
reliance upon the decision of the Supreme Court in Ramesh Gobindram case, 
the basis whereof has been removed after the amendment made by the Act 
27 of 2013, as held in Rashid Wali Beg case.
The Wakf (Amendment) Act, 2013 (Amendment Act 27 of 2013 ) – 
Eff ect of removal of the basis of the judgment – Code of Civil Procedure, 
1908 – s.47 – Suit fi led by the appellant-owner of the suit property 
before the Wakf Tribunal for ejectment and recovery of possession was 
decreed – Respondents fi led revision petition, dismissed – Appellant 
fi led execution petition – After four years, respondents raised plea with 
respect to the jurisdiction of the Wakf Tribunal – Application fi led u/s.47 
dismissed by Executing Court – High Court reversed the said decision by 
placing reliance upon the decision of this Court in Ramesh Gobindram 
(Dead) through LRs. v. Sugra Humayun Mirza Wakf [2010] 10 SCR 
945 – Plea of the appellant that the said decision has been explained by 
this Court in Rashid Wali Beg v. Farid Pindari and Others [2021] 13 
SCR 1 and by the amendment brought in under the Act 27 of 2013, the 
basis of the decision in Ramesh Gobindram has been removed:
Held: This Court in Rashid Wali Beg took note of the earlier decision 
rendered in Ramesh Gobindram and held that after the amendment made by 
the Act 27 of 2013, the basis of the said decision was correctly removed – It 
985
was further held that there are suffi  cient provisions even otherwise to maintain 
a suit for eviction over a Wakf property – Wakf Tribunal has got suffi  cient 
jurisdiction to try every suit pertaining to either Wakf or a Wakf property, 
notwithstanding the nature of relief concerned, except as mandated under 
the statute – High Court while passing the impugned order, unfortunately 
did not have the benefi t of the decision rendered in Rashid Wali Beg – 
Even otherwise, as per the amendment by way of the Act 27 of 2013, the 
jurisdiction now lies with the Wakf Tribunal – An adjudicating forum being 
a product of a procedural right has to come under retrospective operation 
when an amendment is introduced to cure a defect which paved the way for 
a decision of the Court in holding otherwise – Protracted proceedings have 
helped respondents to be in possession for over two decades, notwithstanding 
the expiry of the lease way back in 1999 – The Act 27 of 2013 is a procedural 
amendment and therefore, has to be applied retrospectively in the context 
of change of forum and jurisdictional provisions – The decision in Rashid 
Wali Beg agreeed with – The amendment has been brought forth in order to 
get over the interpretation given in Ramesh Gobindram – Impugned order 
set aside while that of the Executing Court is restored – Waqf Act, 1995 – 
Practice and Procedure. [Paras 28-30, 32]
Code of Civil Procedure, 1908 – s.47 r/w Or.XXI – Execution 
proceedings – Question involving jurisdiction – Availability of 
opportunity to raise said plea at an earlier point of time – Conduct of 
party signifi cant:
Held: An Executing Court is enjoined with the duty to give eff ect to 
the decree – Any interference, including on a question involving jurisdiction, 
should be undertaken very sparsely as a matter of exception – The onus 
lies heavily on the judgment-debtor to convince the Court that a decree is 
inexecutable – The conduct of a party assumes signifi cance – If a party is 
likely to have an undue advantage, despite the availability of an opportunity 
to raise a plea of lack of jurisdiction at an earlier point of time, it should 
not be permitted to do so during the execution proceedings – Further, a 
plaintiff  shall not be made to suff er by the passive act of the defendant 
in submitting to the jurisdiction – One has to see the consequence while 
taking note of the huge pendency of the cases before various Courts in the 
country – There is no gainsaying that but for the adverse decree suff ered, a 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKR

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