New Delhi: The Supreme Court has set aside the orders of the Executing Court and the Telangana High Court rejecting a third-party objection by a waqf trust to the execution of an ex parte decree for specific performance, and has remanded the matter to the Executing Court to allow fresh pleas from both sides and conduct a fresh inquiry.
A Bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria passed the judgment on 14.10.2026 in a Civil Appeal arising out of SLP (Civil) No. 23573 of 2025, Alladin Charities and Zakat Wakf v. Mohammed Saleem alias Mohd. Wajid Ali and Another. The judgment was authored by Justice Bhatti.
Respondent No. 1 had sued before the VII Senior Civil Judge, City Civil Court at Hyderabad, in O.S. No. 2204 of 2012, for specific performance of an Agreement dated 23.02.2001, said to have been executed by Respondent No. 2, who remained ex parte. The suit was decreed on 18.03.2015, covering shops at Rikabgunj, Pathergatti, Hyderabad. When the decree holder sought delivery of possession in E.P. No. 4 of 2016, the appellant trust filed E.A. No. 94 of 2016 resisting execution as a stranger to the decree.
The trust claimed the property under a Farman Mubarak issued by the Nizam of Hyderabad for a waqf, a trust deed of 1976, and a 2003 gazette notification under the Waqf Act, 1995, which it said covered mulgies in its possession. The decree holder claimed the same property through a 1943 sale deed in favour of the father of Respondent No. 2, followed by the agreement of sale.
The Executing Court dismissed the trust's claim on 29.01.2019, finding that it had failed to prove ownership of the scheduled property, that the municipal numbers were not expressly listed in the gazette notification, and that a petition under Order XXI Rule 58 CPC was not maintainable since the execution petition sought delivery of possession and not attachment. The High Court dismissed the trust's appeal, noting that its witness had not produced the Farman or any authorisation from the trust, that no waqf survey report linked the mulgies to the property, and that the sale deed had not been challenged. It also held that the application should have been filed under Order XXI Rule 97 CPC.
Before the Supreme Court, Senior Advocate C. Aryama Sundaram, for the trust, relied on Periyammal (Dead) through LRs v. V. Rajamani, (2025) 9 SCC 568, to argue that quoting the wrong provision is not a ground for rejecting a third-party objector's prayer. He submitted that Rules 97 to 101 of Order XXI deal with resistance or obstruction by "any person", including a stranger claiming independent title, and that the court must conduct a full-fledged inquiry under Rule 101 into all questions of right, title or interest.
He further argued that, in the previous rounds of litigation up to the Supreme Court, the trust's title had been recognised against other claimants, that the boundaries in the old sale deed and the decree schedule differed, and that identity of the property had never been in issue in the suit. The burden, he said, had been wrongly placed on the trust. He sought a remand, or in the alternative leave to establish the claim on the documents in the appeal.
Senior Advocate Basava Prabhu S. Patil, for Respondent No. 1, opposed interference. Asked by the Court whether the schedules in the old sale deed, the agreement of sale and the sale deed executed through the court were correlated and established by documentary evidence, he fairly stated that the decree holder took the view that the third-party objector had to discharge the burden. He then suggested that the matter be remanded and both parties be given an opportunity to file additional pleas and evidence.
The Bench said it was convinced that some of the findings in the impugned judgments "do not conform to well-established principles of law". It set aside the judgments and referred the matter to the Executing Court for disposal afresh, directing it to allow further or fresh pleas on behalf of both parties, conduct a fresh inquiry in light of the Periyammal decision, and decide the matter again.
The Court did not go into the competing claims of the decree holder and the trust in detail, saying it was proposing a view that made this unnecessary. The Civil Appeal was allowed, the matter was remanded to the VII Senior Civil Judge, City Civil Court at Hyderabad, there was no order as to costs, and pending applications were disposed of.
Appearances:
For the Appellant: Mr. C. Aryama Sundaram, Senior Advocate.
For Respondent No. 1: Mr. Basava Prabhu S. Patil, Senior Advocate.
Case Title: Alladin Charities and Zakat Wakf vs. Mohammed Saleem alias Mohd. Wajid Ali and Another, Civil Appeal arising out of SLP (Civil) No. 23573 of 2025
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