P L D 1960 (W (PLP)

On the other hand, Mr. Niamuddin, the learned counsel for the respondents has invited our attention to several Indian decisions Sitaram Reddv v. Chinna Ram Reddy and others (A I R 1959 Andhra 159), A I R 1956 Born. 268 ; Habib and others v. Daulatram and another (A I R 1956 Raj. 121) ; and Sheonath Prasad and others v. N. V. Balaswami and others, (A I R 1959 Pat. 484), in support of his contention that if the decree on the face of it does not show that it was a nullity the executing Court is not entitled to go behind the decree and refuse to execute it. In some of these decisions the learned Judges of the Indian High Courts have observed that by implication their Lordships of the Privy Council in A I R 1933 P C 61 have laid down that if total lack of jurisdiction is not patent in the decree itself, the executing Court is not entitled to hold an enquiry and go back on the decree itself. In the case before their Lordships of the Privy Council an award was filed before the Calcutta High Court but later on the parties compromised the matter and stipulated that the award should be substituted with the compromise arrived at between them. Thereupon the Calcutta High Court passed a decree on the award, which was challenged as without jurisdiction. Their Lordships, however, held that the High Court in view of the provisions of the Arbitration Act of 1899 had no power to pass a decree on the basis of the award but could only execute the award and as such the decree being a nullity was incapable of execution. It is quite true that in that case the defects in the decree were patent but their Lordships nowhere observed that only those decrees are incapable of execution where the defects appear on the face of the record. It will, however, be noticed that Mr. Noorul Arfin, the learned counsel for the respondents, who also addressed us on this question, did not press this extreme view before us. On the other hand he invited our attention to the case of Girwar Narayan Mahlon and others v. Kamla Prasad and others (AIR 1933 Pat. 104) which draws a distinction between an inherent want of jurisdic tion and want of jurisdiction on grounds which have to be determined by the Court itself. The learned Judges of the Patna High Court in that connection at page 106 observed "As to the decree being void for want of jurisdiction in the Court, we consider that the learned Subordinate Judge has failed to appreciate the distinction between an inherent want of jurisdiction and want of jurisdiction on grounds which have to be determined by the Court itself. The first makes the decree a nullity which can be ignored and need not be set aside. The second does not mike the decree a nullity but only voidable : such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached. For instance, if a Munsif tries and decrees a suit of Rs. 5,000 in value, as alleged by the plaintiff and not disputed by the defendant, or found by the Court, there is an inherent want of jurisdiction, and vie decree need not be set aside by any particular procedure it is a nullity and can be ignored. On the other hand, if a Court proceeds to try a suit, which is barred for instance by the principle of res judicata, however erroneous the decree of the Court may be, it cannot be collaterally challenged." The learned Judges further observed at page 107 "Thus, if the question of jurisdiction is to be decided by the Court itself with reference to the existence or other wise of a particular fact in bar of the trial, there is no want of inherent jurisdiction, and the judgment pronounced may be erroneous but not void and cannot be collaterally impeached. The question of jurisdiction in such a case is, like other questions of fact or law to be decided by the Court itself which otherwise has jurisdiction to try the suit." In Cantonment Board v. Kishan Lal (A I R 1934 All. 609 (F.B)) it was held that it is not open to a defendant in a suit, which under the Agra Tenancy Act is cognizable by the Revenue Court alone and in which no such objection was taken or if taken was disallowed, to raise the same point over again in the execution department. They further held that it is not possible to lay down broadly that an execution Court can in no circumstances go behind the decree and must of necessity shut its eyes to the circumstances under which the decree came to be passed. The Sind view on this point is also to the same effect. Davis, C. J., in Singomal Ponumal, Firm v. Khushaldas Lekhraj Firm (A I R 1940 Sind. 150) in this connection observed at page 152 "With the greatest respect however to the learned Judges who take the view that it is open to the executing Court to go behind the decree and decide upon the jurisdiction of the Court which passed the decree, appreciating, as we do, the difference which may be said to exist between what is called the absence of jurisdiction and the mere irregularity in the exercise of it, we do not think it necessarily follows that it is open to an executing Court to go into a question of juris diction which, it must be taken, was by necessary implication decided by the trial Court when it passed its decree. We can distinguish between a case where a decree is sought to be executed against a dead man and the case in 60 I A 71 where a decree was on the face of it, not in proper form and other cases, where the question of jurisdiction territorial, pecuniary or personal is concerned, because in the former class of cases it is not really a question of jurisdiction at all. The decree is a nullity and cannot be executed, not because that particular Court had no jurisdiction but because no Court at all had jurisdiction, It was not really so much a question of juris diction as a question independent of jurisdiction. The decree was a nullity because no Court can pass a decree against a dead man or a person not a party to a suit or a decree in proceedings under the Arbitration Act. It would not be necessary in such a case to refer back to the particular powers of a particular Court or to decide what might in particular cases be difficult questions of law or fact. For instance, in this case before us, we heard at great length arguments as to the interpretation and application of section 2, Arbitration Act, to the particular facts of this case which seemed to us to raise questions of some difficulty and complexity, and which should clearly have been raised and argued in the Court of first instance and which must, we think, by necessary implication be deemed to have been so raised and decided. We think the principle which must govern questions of this kind is set out by West, J. in I1 Bom. 160 at p. 171. . . . . . and in 7 Bom. 481 at p. 483 . . . . ." The learned Chief Judge further observed at page 152 "An executing Court can, we think, enquire into and decide that a decree is a nullity "not on the ground of jurisdiction, but because the decree passed is not a decree at all, such as in the case of a decree against a person who is dead, or is a decree in arbitration proceedings under the Arbitration Act which is no decree at all. These decrees are nullities, questions of jurisdiction apart, and we think a distinction drawn between decrees which are nullities, apart from a question of jurisdic tion and other decrees, is a surer guide in this matter than a distinction drawn between what is called the absence of inherent jurisdiction and irregularities in the exercise of jurisdiction." We are in respectful agreement with the view expressed by Devis, C. J., in the above‑mentioned Sind case. The view of the Lahore High Court is also to the same effect. In Syed Mahbub Hussain Shah and others v. Anjuman lmdad Qarza and others (A I R 1942 Lah. 129), Dalip Singh, J., observed "It seems, however, to have caused some confusion in the matter as to whether the executing Court could only look at the decree itself to determine this question or could make any enquiry on the subject in order to determine the very limited point involved, namely, whether there was lack of inherent jurisdiction in the Court passing Involve decree or not. This question appears to me always to involve a certain enquiry, however limited the scope of that enquiry may be. For instance, it is now settled law that a decree against a dead man is a nullity but in order to allow the executing Court to deter‑ mine whether the man was or was not dead at the time when the decree was passed there must be some evidence to show whether the man was dead or not." In the light of this discussion with respect we are unable to agree with the view expressed in the decisions cited by Mr. Naimuddin. In our opinion the correct view on this question appears to be that in all those cases where there are patent reasons of doubting the jurisdiction of the Court that passed the decree namely a decree which will be void on account of total lack of jurisdiction, the executing Court is competent to hold an enquiry to decide that a decree is a nullity and incapable of execution. But if the question of want of jurisdiction is to be decided with reference to the existence or non‑existence of ` a particular, set of circumstances or facts, the decree cannot be impeached in collateral proceedings because the judgment, though erroneous, will not be void and it will not be a case of a decree which in all eventualities is a nullity. Thus the power of the executing Court in this respect is very narrow and limited. This brings us to the next question whether the decree in this case is void and a nullity. It was urged by Mr. Lakhani that under section 54 of the Sind Co‑operative Societies Act, 1925, as amended, the jurisdiction of the Civil Court is impliedly barred in those cases where the dispute between a member of a Society arid a Society touches the business of the Society because such a dispute can only be referred to the Registrar for decision by himself or his nominee. In this connection the learned counsel for the appellants relied on Fakir Muhammad Dadu Muhammad v. Mercantile Co‑operative Bank Ltd. Karachi (A I R 1946 Sind 143). Mr. Lakhani also referred us to certain decisions of the Lahore High Court and West Pakistan High Court, Lahore, under the Central Co‑operative Societies Act, 1912 in which it was held that under the rules framed by the Provincial Government under section 43 of the aforesaid Act all matters touching the business of the Society between its members or past members and the Society are required to be referred for arbitration to the Registrar or his nominees and as such the jurisdiction of the Civil Court was impliedly barred. This view was at first taken in The Zamindara Bank, Sherpur Kalan and others v. Suba (A I R 1924 Lah. 418) by the Lahore High Court and was subsequently followed by the West Pakistan High Court at Lahore in Mian Nur Husain and others v. Khalifa Muhammad Sultan and others (P L D 1956 Lah. 893), Mian Mubarak Din v. Registrar, Co‑operative Societies, West Pakistan and others (P L D 1957 Lah. 1013) ; Lyallpur Co‑operative Society Limited v. Zamindara Transport Co. Ltd. and another (P L D 1958 Lah. 1026) and The Lyallpur Co‑operative Transport Society Ltd. v. Ch. Ahmad Saeed and others (P L D 1958 Lah. 1031). This view is also supported in the cases Dacca Co‑operative Industrial Union Ltd. v. Dacca Co‑operative Sankhya Silpa Samity Ltd. No. 1 and others (A I R 1938 Cal. 327) and Rambhaktula Ramayya v. Chittoor District Co‑operative Deputy Registrar and others (A I R 1945 Mad. 370) under the Central Co‑operative Societies Act. But these decisions are clearly distinguishable firstly because under Rule 18 framed by the Punjab Provincial Government under section 43 of the Central Co‑operative Societies Act, it is not contemplated that such dispute can in certain circumstances be the subject‑matter of decision of the Civil Court and secondly the Act itself does not contain any provision like section 70 of the Sind Co‑operative Societies Act which provides that a suit against a co‑operative society can be instituted after a statutory notice is given to the Registrar of Co‑operative Societies. It will be noticed that section 14 of the Sind Co‑operative Societies Act, 1925, provides that if any dispute touching the constitution or business of a society arises between members or past members of a society etc., it shall be referred to the Registrar for decision by himself or his nominee or if the other parties so desire to arbitration of three arbitrators who shall be the Registrar or his nominee and the persons of whom one shall be nominated by each of the parties concerned etc. Its proviso reads as under "Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending pro ceedings the Registrar shall take action as laid down in paragraph 1 of this section." A perusal of the proviso clearly shows that under section 5 of the said enactment the jurisdiction of the Civil Court is not totally barred and the disputes covered by it can also be adjudi cated upon by a competent Court of civil jurisdiction. This intention of the Legislature is further clear from section 70 of the said enactment, which provides as under:‑ "No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the Society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left." In the face of the above provisions it is abundantly clear to us that under section 54 of the said enactment the jurisdiction of the Civil Court in respect of the dispute between the members and the society is not totally barred and the contention that in all eventuality the decree of the Civil Court in such matters will be a nullity is not well‑founded. In Girwar Narayan Mahton and others v. Karnla Prasad and others (A I R 1933 Pat. 104) the jurisdiction of the Civil Court was barred under section 109 of the Bengal Tenancy Act in certain circumstances but it was held that if the jurisdic tion was to be decided by the Court itself with reference to the existence or otherwise of a particular fact in bar of a trial, there is no want of inherent jurisdiction and the judgment pronounced may be erroneous but not void and cannot be collaterally impeached. Similarly, in Cantonment Board v. Kishan Lai, it was held that it is not open to a defendant in a suit, which under the Agra Tenancy Act was cognizable by the Revenue Court alone and in which no such objection was taken or if taken was disallowed, to raise the same point in the execution department. We find much force in the argument of Mr. Noorul Arfin that in this case the condition precedent for the exercise of juris diction of Civil Court may be the order of suspension of proceed ings by the Registrar, but it is not a case of inherent lack of jurisdiction of the Civil Court in which the decree in all even tualities will be a nullity. The learned counsel referred us to Moore and another v. Gamgee ((1890) 25 Q B D 244) ; Umabai Shankar Bargaonkar v. Shankar Hari Borgaonkar (A I R 1940 Bom. 44) ; Kurashiddayya Shiddayya Bennur v. Shree Gajanan Urban Co‑operative Bank Ltd. and another (A I R 1943 Bom. 288) at page 291 column (2) para. 2 and Suraj Narain Prasad v. Jamil Ahmad and another (A I R 1946 Pat. 385) in which a distinction was drawn between cases where there is a total want of jurisdiction and cases where there is no want of jurisdiction over the subject‑matter of the suit but is contingent for instance on leave to sue being obtained or filing a suit in the ordinary way on the payment of costs awarded in the pauper proceedings and it was held that if the defendant does not by objecting at the proper time, exercise his right of destroying the jurisdiction, he cannot do so afterwards. The instant case appears to us to be of the last mentioned category. Accordingly we are of the view that section 54 of the Sind Co‑operative Societies Act does not totally oust the juris diction of the Civil Court and the contrary view expressed in A I R 1940 Sind 143, being an obiter and not a well considered judgment does not correctly lay down the true import and implica tion of the above mentioned provision of law. In these circum stances the impugned decree cannot be challenged on the ground of nullity in the execution proceedings and the execution Court was perfectly justified in dismissing the objections and proceed ing with the execution. As a result the appeal is dismissed with costs. A. H. Appeal dismissed.