Coimbatore Athupalam Shafia Ahalui Sunnath Jamath vs Noyyal River Sulthan Awalia Dargha Wakf

Honourable Mr. Justice R.S. Ramanathan

The judgement-debtor/defendant is the revision petitioner. The respondent filed O.S. No. 607 of 1980 for mandatory injunction and the suit

was dismissed. The appeal filed by the respondent in A.S. No. 33 of 1988 on the file of the I Additional District Judge, Coimbatore was allowed

and the judgement and decree of the trial court was set aside and three months'' time was given to the revision petitioner to remove the

construction. The revision petitioner filed a second appeal against the judgement and decree passed in A.S. No. 33 of 1988 and the same was

dismissed in the year 2006. Thereafter, the respondent filed E.P. No. 48 of 2008 to execute the decree passed by the first appellate court and the

E.P. was ordered. Aggrieved by the same, this revision is filed. It is submitted by the learned counsel for the petitioner that admittedly, the suit O.S.

No. 607 of 1980 was filed by the Muthavali Syed Mohideen representing Noyyal River Sulthan Awalia Dargha Wakf and E.P.No.48 of 2008

was filed by one S.M. Mehaboob Basha claiming to be the present Muthavali of the said Wakf and therefore, the execution petition filed by the

S.M. Mehaboob Basha is not maintainable. He further submitted that admittedly by proceedings dated 30.10.2009, the said S.M. Mehaboob

Basha was appointed as Muthavali for the period from 24.9.2009 to 23.9.2012 and therefore, for the year 2008, he had no authority to represent

the Wakf. Therefore, he submitted that E.P. No. 48 of 2008 filed by the respondent is not maintainable. He further submitted that despite

objection was raised by filing counter, the court below without considering the objection passed the order in the execution petition filed by the

respondent.

I am not inclined the accept the contention of the learned counsel for the revision petitioner. No doubt in the counter, the revision petitioner has

stated that the earlier Mothavali Syed Mohideen died leaving behind him, S.M. Mehaboob Basha and another son and that without proving the

said S.M. Mehaboob Basha as the present Muthavali of Wakf in the absence of recommendation by the Wakf Board, the respondent cannot

represent the Wakf. It is seen from the order dated 30.10.2009 that the said S.M.Mehaboob Basha was appointed as Muthavali on 24.9.2009

for the period of three years. The suit was filed by the Wakf represented by Muthavali namely Syed Mohideen. Admittedly the said Syed

Mohideen died and subsequently S.M. Mehaboob Basha, who is none other than his son, the present Muthavali filed the execution petition claims

to be the present Muthawalli of the said Wakf. There is no change in the character of decree-holder and the decree-holder remains the same in the

suit, namely Wakf and the person who is representing Wakf has been changed due to the death of the earlier Muthavali and his son filed E.P.

claiming to be the present Muthavali of the said Wakf to execute the decree.

Reading of Section 146 CPC makes it clear that where any proceeding is taken by or against any person then the proceedings may be taken by

or against any person claiming under him. In this case, the decree-holder Wakf filed the execution petition by the person who claims to be the

Muthavali and his claim was also subsequently ratified by the Wakf Board. Therefore, as per Section 146 of C.P.C. any one can represent the

decree-holder to execute the decree. Further as per the definition of Muthavali under the Wakf Act defined u/s 3(i) any person for time being

managing or administering any Wakf or Wakf property can also be claimed to be Muthavali. The said S.M. Mehaboob Basha has administered

the Wakf and filed execution petition and therefore, he is entitled to file the same. The said S.M. Mehaboob Basha representing the Wakf as the

present Muthavali filed E.P. and that was rightly considered by the lower appellate court and the E.P. was allowed. Hence I do not find any merit

to interfere with the order of the court below.

The revision is dismissed. No costs. Consequently the connected M.P. No. 1 of 2011 is also dismissed.