P L D 1980 Supreme Court 62 (PLP)

SHAPI-UIt-REHMAN. J.-The petitioner seeks leave to appeal against the decision of the Lahore High Court dismissing his regular second appeal.

2. The facts necessary for the disposal of this petition are that the petitioner was admittedly the transferee of Kashmir Hotel in Rawalpindi. The Permanent Transfer Deed in respect of it had been issued in his favour. There arose a dispute between him and the respondent a private limited company. The respondent claimed that the beneficial interest in the property vested in it and the petitioner was only a Benamidar. The matter was re,'erred to arbitration without the intervention of the Court. The award was given by the sole arbitrator on 28-1-1971 holding that though the property had been purchased in the name of the petitioner it belonged to the respondent who was its exclusive owner. This award was made a rule of the Court on 2-12-1971 and the judgment and decree followed. Nevertheless, subsequently the petitioner thought of disposing of the property as if it were his own. The respondent filed a civil suit for perpetual injunction against the petitioner restraining him from selling or in any manner alienating, charging or interfering with the possession and enjoyment of the property and also restraining him from asserting himself to be its owner. The plaint was rejected by the trial Court. The Additional District Judge examined the claims of the parties and decreed the suit in terms prayed for. The regular second appeal was taken to the Lahore High Court and it was dismissed.

3. It appears from the petition filed in this Court (ground (iii) para. 14 of the petition) that the objection seriously advanced - in the High Cour and subordinate Courts was that "the decree dated 2-12-1971 is compulsorily registrable under section 17(1) (c) of the Registration Act." It was for this reason that the High Court in para. 3 of its judgment reproduced this particular provision. This objection of the learned counsel for the petition could be met adequately by showing to him that it was not a case of the being a non-testamentary instrument which transferred or assigned any decree or order of a Court or any award. It was wholly inapplicable to the cal in hand.

4. The decision, it appears, has proceeded on the other objection of the learned counsel for the petitioner that the award itself required registration and being not registered it could not be earlier made the rule of the Court and the judgment and decree could not follow. It was on this point that the conflicting views of the different High Courts were referred to and cited. Another ground taken up was that even if the award could declare without the intervention of the Court and did not require registration, the decree that followed after making it rule of the Court must have been got registered. The learned counsel for the petitioner has not before us pressed the grounds based on section 17(1) (e) of the Registration Act or the third ground that the decree itself should have been registered. Instead now the contention is that as the award declared rights in immovable property valuing more than Rs. 100, clause kb) of subsection (1) of section 17 was applicable, and the award required registration and being unregistered the decree itself could not follow.

5. The moot question for the purposes of this petition is whether the petitioner having submitted to the award, having got it made the rule of the Court and having submitted to the judgment and decree declaring it to be so can still be heard objecting to the legality of the decree, on the ground that there was an infirmity which rendered the decree itself a nullity. For this reliance has been placed on the decision in Uttemchand Motilalji v. Wavudeo Deorao Digambar (A I R 1946 Nag. 311) wherein it was specifically claimed that such a defect even if existing would not nullify the judgment and decree and it was met by holding as follows : "When however there is a definite decision of a Full Bench of this Court vide

1. L. R. (1939) Nag. 607 that no decree can be passed on the basis of an award which requires registration it must follow that such a decree in respect of the charge is a nullity in that it was one which the Court was incompetent to pass." The judgment which rendered such a decree nullity did not for example take into consideration and could not possibly have taken. it into consideration, the provisions of Arbitration Art of 1940 and the effect of Ordinance No. XLV of 1962 amending section 49 of the Registration Act. It cannot be at all said that a judgment and decree of a Court making the award rule of the Court when the award required registration and was not registered rendered the decree nullity and an objection to it could be taken up to avoid it by the very party to that decree. The matter has been dealt with at- some length in Muhammad Yusuf v. Abdur Rashid and others (P L D 1967 Kar. 501) and we do not consider this to be a fit case where leave should be granted to such a petitioner. The petition has no merit and is dismissed. s. A. H. Petition dismissed.