P L D 1955 Sind 297 (PLP)

INAMULLAH, J.‑This is an application for execution of decree. Judgment‑debtor objects to the execution of the decree on the ground that the decree is a nullity. The facts shortly, according to the judgment‑debtor, are these :‑ The decree‑holder contracted to purchase from the defendant judgment‑debtor on 21st December, 1951, 500 bales of cotton at Rs. 94 per maund. The plaintiff decree‑holder was not able to take, delivery of the goods and re‑sold the same on 19th February, 1952, to the defendant judgment‑debtor at two different rates 200 bales were sold at Rs.75‑72 per maund and 300 bales Rs. 76 per maund. The plaintiff decree‑holder was according to the re‑sale in favour of the defendant judgment‑debtor, liable to pay Rs 42395‑1‑6 as difference. An amount of Rs. 85000 was lying with the defendant judgment‑debtor towards part payment of the goods purchased by the plaintiff decree‑holder on 2! st December, 1951. The defendant judgment debtor there fore deducted the amount of Rs. 42395‑1‑6 that was due to him from the deposit of Rs. 85000 and on 20th February, 195? paid the blance of Rs 42604‑14‑6 by a cheque No. MWK 517783 drawn on Habib Bank Ltd. This settlement was signed by the plaintiff's representative who took the cheque of Rs. 42604‑14‑

6. The defendant judgment‑debtor has produced a photo copy of the same This document is a receipt for the balance of the amount paid‑to Mullick Bros. and also decribes the two transactions of the 22nd December, 1951 and that of 19th February, 1951. It was also contended by the defendant judgment‑debtor that there was no arbitration clause in the two contracts entered into between the parties on 22nd December, 1951 and 19th February, 1952. The parties, however, were members of the Karachi Cotton Association Ltd., and under the by‑laws of the Karachi Cotton Association Ltd., the parties could have recourse to refer the matter to the Association. The plaintiff decree‑holder did not refer the matter to Karachi Cotton Association Ltd. but referred to the arbitration of the Pakistan Cotton Association Ltd. The defendant judgment‑debtor is not a member of the Pakistan Cotton Association Ltd. The plaintiff decree‑holder has appointed one Mr. Mukhtar Ahmad at an arbitrator on their behalf and also appointed Mr. A. M. Mullick as an arbitrator on behalf of the defendant judgment‑debtor. The defendant judgment‑debtor on receipt of notice from the arbitrators informed them on 17th May, 1952 a nd 27th May, 1952 that they could not act as arbitrators as they were not the members of the Karachi Cotton Association Ltd. and were also not on the panel of the arbitrators and therefore they could not act as arbitrators. The defendant judgment debtor has filed copies of the letters. The defendant judgment debtor also informed the arbitrators on 25th March, 1952, 31st March 1952, 3rd April, 1952, 29th April, 1952 and 17th May, 1952 that there was no difference and dispute as the matter has already been settled between the parties. The defendant has filed the copies of these letters along with his affidavit. The arbitrators however gave their award on 6th June, 1952 ex‑parse. The award given by the arbitrators on 6th June, 1952, was filed in Court and the defendants filed their objections on 10th October, 1952 under section 30 of the Arbitration Act 1940 for setting aside the same. The objection taken to the award was the same as has already been mentioned above. It was contended in the first place that there was no arbitration agreement between the parties and in the second place that there was no difference or dispute which could be referred to the arbitrators. It is note worthy that no counter‑affidavit to the same was filed by the plaintiff decree‑holder. On 16th February, 1953 when the application came for hearing the defendant and his advocate were called but were absent and the application was dismissed and the award was made the rule of the Court on 16th March, 1953 and the decree was to follow the same. An application under O. IX rule 13 was made for setting aside the orders passed on 16th March, 1953. This application was dismissed on the ground that it was not maintainable as the advocate for the defendant was present before the Court when the award was made the rule of the Court. The above is the allegation of the facts made by the defen dant judgment‑debtor. The plaintiff decree‑holder in reply filed a counter‑affidavit. This counter‑affidavit has four paras. Paras 1 and 4 are formal paragraphs and the relevant paragraphs are Nos. 2 and

3. I would reproduce the same in order to show that the plaintiff decree‑holder has not cared to meet the facts alleged by the defendant judgment‑debtoi. These two paras. run asunder: "(2) That I have read the affidavit of Aba Husain and I say that the facts therein and allegations are incorrect and false. (3) That I am advised as an executing Court this Hon'ble Court cannot go behind the decree. The suit cannot be reopened in execution of the decree when the application under Order IX rule 13 is dismissed; this Hon'ble Court was pleased to dismiss the application under O. XLI, rule 5 C, P. C. also and I am also advised that the payment of money to me is justifiable under the law and cannot be withheld." It is clear from a perusal of these two paragraphs that the plaintiff decree‑holder has not contended that there was no agreement for arbitration between the parties regarding the contracts of 22nd December, 1951 and 19th February, 1952. If there was any agreement for arbitration between the parties, the plaintiff decree‑holder could have filed the same in Court. It is also not contended by the plaintiff decree‑holder that the defendant judgment‑debtor is a member of the Pakistan Cotton Association Ltd. and therefore was bound by the rules of the same, It would have been easy for the plaintiff decree‑holder to file a certificate from the Secretary of the Association showing that the defendant was a member of the Pakistan Cotton Association and he was therefore bound by the award given by the arbitrators who were members of the Pakistan Cotton Association Ltd. The plaintiff decree‑holder has not controverted the facts that there was no resale in favour of the defendant and that there was no settlement of accounts between the parties and that he did not receive the cheque of Rs. 42604‑14‑6 in full settlement of the contracts between the parties. The facts in short alleged by the defendant judgment debtor remain uncontroverted. The defendant judgment‑debtor has contended that the decree is a nullity and therefore it cannot be executed. This contention is based on two grounds : (i) that there was no agreement to refer to the arbitration of Pakistan Cotton Association Ltd. and that the rules of Pakistan Cotton Association Ltd. could not apply to the defendant as he was not a member of the same ; and (ii) that there was no differ ence or dispute between the parties which could be referred to the arbitration. The first question that arises is, can the executing Court go behind the decree ? The general rule no doubt is that the executing Court must accept the decree as it is, but there is a certain exception to the same when the decree has been passed without any jurisdiction. If the decree is passed with out jurisdiction, the decree is a nullity and the executing Court cannot execute the same. The question, whether the execut ing Court can go behind the decree had led to some conflict of opinion between different High Courts. But it appears to me that after the pronouncement of their Lordships of the Privy Council in the case of Janendra Mohan Rahaduri (A I R 1933 P. C. 61) the question has been settled that where a decree has been passed without jurisdiction the executing Court can refuse, to execute the same. In that case a certain dispute between the parties was referred to the arbitrators and an award was ultimately filed before the High Court at Calcutta. The parties after the filing of the award entered into a fresh agreement and prayed before the High Court that the award may be modified in terms of their settlement. The High Court passed the following order on 14th February, 1919: "The said award as modified by the said terms of settle ment ought to be carried into effect, and the same is ordered and decreed accordingly. The decree was transferred by the High Court for execution to the Subordinate Judge Hooghly. An objection was taken by the respondent in that case that the decree could not be executed as the same was passed without jurisdiction. The contention raised before the Subordinate judge was that the decree was a nullity inasmuch as under section 15 of the Arbitration Act the Court could not pass a decree on the basis of the award but that the award could only be enforced as a decree. The Subordinate Judge held that the High Court had no jurisdiction to pass a decree on the basis of the award. In appeal the learned judges of the Calcutta High Court agreed with the Subordinate judge in holding that the decree was a nullity and that the same was not executable. Their Lord ships of the Privy Council observed as under: "The Act does not contain any provision for making a decree on an award such as is contained in Sch. 2, para 21, of the Code of Civil Procedure. Such a decree, if made, is one without jurisdiction, and therefore a nullity. Their Lordships agree with the view taken by the Courts in India that the decree of 14th February, 1919; was passed without jurisdic tion, and was therefore incapable of execution as such." In the above case their Lordships were considering the provisions of the Indian Arbitration Act 1899 which was applicable to the Presidency Towns. It is clear from the above case that their Lordships of the Privy Council had approved the view of the Subordinate judge that if a decree is passed without jurisdiction the same cannot be executed by the executing Court. The executing Court in short could go behind a decree if it could hold that the decree was passed IA without jurisdiction. A Division Bench of the Lahore High Court in A I R 1942 Lah. 129 held that the executing Court could go behind the decree and find out whether the Court which passed the decree had or had not inherent jurisdiction to pass the decree in question. In that case the decree was passed against the minor who was not properly represented and their Lordships held that the executing Court could go behind the decree and make an inquiry whether the minor was properly represented or not. Daiip Singh J. observed as under: "There can be no doubt now in view of the decision of their Lordships of the Privy Council in 60 Cal. 670 (A I R 1933 P. C. 61) that the executing Court can go behind a decree whether the Court which passed the decree had or had not inherent jurisdiction to pass the decree in question. This proposition can now no longer be disputed." In this very case the observation of Din Muhammad J. at page 133 is interesting to note. "In A I R 1936 Lah. 442 Bhide J. followed a previous decision of Addison J. as reported in A I R 1926 Lah. 547 and observed that "it is a well established rule that an executing Court had no jurisdiction to question the validity of the decree sought to be executed." It is remarkable that in both these cases no authority was cited or discussed and it was taken for granted that, this was a settled law. This ruling runs counter to the numerous decisions of the various High Courts in India as well as the Privy Council where the executing Courts have been allowed to question the validity of decree if there was inherent lack of jurisdiction in the Courts which passed the decree and if I may say so with all respect, has not been correctly decided. It is significant that in A I R 1929 Lah. 449 and A I R 1938 Lah. 515 it was laid down that the decree has to be determined by the executing Court and not by a separate suit." A Full Bench of Calcutta High Court consisting of five judges in the case of Gora Chand Haldar and another (A I R 1925 Cal. 907) held where that a decree presented for execution, was made by a Court which apparently had no jurisdiction, pecuniary or territorial, to pass a decree the executing Court is entitled to refuse to execute it on the ground that it was without juris diction. A single judge of the Punjab High Court in A I R 1952 Ph. 159, took the same view that where the order passed is without jurisdiction the executing Court could refuse to execute it. It is not necessary I think to multiply authorities on this point in view of the pronouncement of the Privy Council in the case already mentioned that the executing Court can refuse to execute the decree passed without jurisdic tion. The next question now to consider is how is the execut ing Court to determine the question of nullity of the decree. This question has been appropriately decided by a Division Bench of the Lahore High Court in the case of Syed Mahboob Hussain (A I R 1942 Lab. 129). Dalip Singh, J., observed: "It seems however to have caused some confusion in the matter as to whether the executing Court can only look at the decree itself to determine this question or could make any inquiry on the subject in order to determine the very limited point involved, namely, whether there was lack of inherent jurisdiction in the Court passing the decree or not. This question appears to me always to involve a certain inquiry, however limited the scope of that inquiry 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 determine 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. Similarly if a decree is held to be without pecuniary or territorial jurisdiction there must be some evidence apart from the decree as to whether the Court that passed the decree had or had not pecuniary or territorial jurisdiction to pass the decree. Such questions cannot as a rule be solved merely by looking at the decree as it stands. Some kind of inquiry, however limited in scope, is obviously necessary. I fail to see why a posibly more extended inquiry, namely, as to whether a minor is a minor or not and whether he was properly represented or not, should be beyond the power of the executing Court." I am of the view that the executing Court can in the present case determine on the affidavit that has been filed and the other relevant papers on the record, the question of nullity of the decree. The third question for consideration is whether the decree was passed without jurisdiction. It cannot seriously be con tended that if there is no arbitration agreement any award made by any arbitrator would be without jurisdiction and decree passed thereon would also be without jurisdiction and therefore a nullity. In the present case the definite con tention of the judgment‑debtor is that there was no arbitration agreement within the meaning of the Arbitration Act but that as the parties were members of the Karachi Cotton Association Ltd. they were bound by the terms and rules of that Associa tion. Any dispute between the parties regarding the terms in question could be referred under the rules of the Karachi Cotton Association to the Arbitration of the persons main tained on the panel of arbitrators by the Association. In the present case it is not contended that the dispute was referred to the arbitration of the arbitrators maintained on the panel of arbitrators by the Karachi Cotton Association Ltd. or under the rules of the Karachi Cotton Association Ltd. It is on the other hand clear from the award itself that Mr. A. Mallick was appointed under by‑law No. 39 of the Pakistan Cotton Association Ltd. to act as an arbitrator on behalf of Messrs. Haji Muhammad & Bros. It cannot there fore be denied that the arbitration did not proceed under the Pakistan Cotton Association Ltd. It has, as I have already mentioned above, not been shown by the plaintiff decree holder that the defendant judgment‑debtor was a member of the Pakistan Cotton Association Ltd. If he was not a mem ber of the Association and no agreement existed between the parties to refer their disputes regarding the contract in question to the arbitration of the Pakistan Cotton Association Ltd. I fail to see how the arbitrators were appointed under the Pakistan Cotton Association Ltd. would have jurisdiction. Mr. Sultan Ahmad for the plaintiff respondent relied on by‑law No. 37 of the Pakistan Cotton Association Ltd. Under this by law there can be an arbitration between a member and a party who is not a member. This by‑law presupposes that a party who is not a member has agreed to refer the dispute to the arbitration of the Association. Para 37 itself' requires that the arty who 'is not a member of the Association will pay in advance the arbitration fee and then enjoy the privi lege and be under the obligation of the by‑laws effecting the arbitration. Mr. Sultan Ahmad has not cited any authority or lave for the proposition that where there is no agreement for arbitration between the parties and a party is also not a member of an Association, he can be bound by the rules of that Association regarding the arbitration. I am clearly of the opinion that where there is no arbitration agreement between the parties‑ the rules of Association regarding arbitration can bind the parties only if they are the members of that Association. It is only then that it can be contended that there is an agreement for arbitration within the meaning of Arbitration Act 1940. In A I R 1949 Bombay 158 Chagla, C. J. observed at page 160 para 5: "The other question put forward by Mr. Maneksha is that there is no written submission and therefore the petition is misconceived. The position is the petitioners are members of the Marwadi Chamber of Commerce and the respondents are not members. Therefore, prima facie, any rule of the Marwadi Chamber of Commerce with regard to arbitration would not bind the respondents. If the contract had been signed by the respondents, then there would be no difficulty because the contract itself contained a term with regard to reference of arbitration." In the present case before me the contention of the defendant judgment‑debtor is‑ that he is not a member of the Pakistan Cotton Association Ltd. and that there is no written agreement between the parties for arbitration and therefore the arbitra tors had no jurisdiction to arbitrate and the award submitted by the arbitrators was without jurisdiction and therefore the decree passed thereon was also without jurisdiction. It was further contended by Mr. Chundrigar, the learned advocate for the defendant judgment‑debtor, that the award should have been filed in form 12 B of Rule 288, of the Sind Chief Court Rules (O. S.). One of the requirements of the rule is that the arbitrators had to file the arbitration agreement. The object of this requirement is that the Court may be able to note that the arbitrators had jurisdiction and authority to give the award which they have filed. The arbitration agreement is the power of the arbitrators to proceed in the matter. In the absence of this important document the award as filed on the face of it shows that it was made without any jurisdiction. The filling of the arbitration agreement along with the award fulfils the same requirements as a Vakalatnama in the proceedings before the Court that the advocate who had instituted the proceedings had authority to do so on behalf of his client. A perusal of the award and the other documents filed along with it do not on the face of it disclose that the arbitrators who have fled the award before the Court had jurisdiction to proceed in the matter. It does not require an authority for the proposition that if an award has been made without jurisdiction the decree passed thereon would also be without jurisdiction. If however an authority is needed there is one Narain Das Balakram (A I R 1951 Al1. 860) In that case by an oral agreement a non‑member of an Association bound himself to abide by the rules and by‑laws of the Association including the rule relating to submission of disputes to arbitration. It was held in the first place that there was no written agreement to refer their disputes to arbitration as defined in section 2 of the Arbitration Act ; and it was held in the second place that as an award given by that Association would be without any valid reference the Court which passed the decree did so without jurisdiction and the same could be set aside in revision. The principle of law deduceable from that case is that if an award is made without valid reference a decree passed thereon would also be with out any jurisdiction. I have no doubt under the circumstances that the award that was made was without any valid reference and that it was therefore a nullity. Tln A I R 1946 P. C. 72 the question before their Lordships of the Privy Council was whether a reference l to arbitration made in a suit and an award made thereon was valid or not. In that case their Lordships of the Privy Council held that the reference to arbitration was bad inasmuch as there was no proper guardian‑ad‑litem who could refer the matter to arbitrators on behalf of the minor. Their Lordships in those circumstances observed: "If their is no valid reference the purported award is a nullity and can be challenged in any appropriate pro ceeding." This ruling of the Privy Council has in my opinion a direct application to the facts of the present case. There being no agreement between the parties to refer the dispute between themselves to arbitrators, the reference was not valid and the award made thereon was a nullity. This could be challenged in any appropriate proceeding. The execution proceeding is under the circumstances of the present case an appropriate proceeding under which the decree passed on an award which was a nullity could be challenged. The second contention raised by the learned advocate for the defendant judgment‑debtor was that, at any rate, there was no dispute or difference between the parties to refer to arbitrators. The contention of the learned counsel was that the matter between the parties regarding the two contracts of the 22nd December, 1951 and 19th February, 1951 had been settled between the parties, in proof whereof the defendant judgment‑debtor has filed a receipt signed on behalf of the plaintiff‑firm. This receipt embodies the two transactions and also how the two transactions had been settled between the parties. The existence of this receipt had not been contesetd by the plaintiff decree holder. If the facts as alleged by the defendant, which have remained uncontroverted are accepted, it would appear that there was no dispute or difference between the parties on the day when the alleged reference was made to the arbitrators. The receipt is dated 20th Feb ruary, 1951 while the reference to arbibtrators was made much later. Under these circumstances it cannot be said that there was a difference or dispute between the parties regarding the contracts in which they had entered. The fact of an existing dispute is an essential conditon of an arbitration. In order to constitute an arbitration agreement there must be some dispute or difference either existing or prospective between the parties and they must intend that it would be determined in a quasi judicial manner (Halsbury II Ed. V. I, p. 622). It is no use to cite authorities on the question that the subject matter of every reference to arbitration by consent out of Court must be some difference or dispute arising between the parties. In view of my finding on the first ground on which the validity of the decree has been chal lenged, I do not consider it necessary to examine this ground in detail. Suffice it to say that there was no dispute or difference between the parties on the day of the reference to arbitrators, as it appears from the facts alleged by the defen dant and supported as is it by documentary proof. Mr. Sultan Ahmad the learned advocate for the plaintiff decree‑holder has raised three‑fold contentions before me. The first contention was, which I have already disposed of, that under the rules of Pakistan Cotton Association Ltd. there can be a reference between a member and a non member, and I need not repeat my remarks on this ground. The second ground raised by the learned advocate was that the executing Court could not go behind a decree. He has relied on a number of authorities in which this general principle that the executing Court cannot go behind the decree has been laid down without any reservation. Mr. Sultan Ahmad has relied on two Sind Court cases. In A I R 1942 Sind 61 a decree for some mesne profits was challenged before the executing Court on the ground that the plaintiff decree‑holder was in joint possession with the judgment debtor. It was held by Davis, C. J., in those circumstances that an executing Court must take the decree as it stands and that it cannot go behind the decree. In that case clearly there was no question of any jurisdiction involved. The case of Shingomal (A I R 1940 Sind 150) relied upon by Mr. Sultan Ahmad does not demolish the conclusions I have arrived at. The learned Judge after considering the authorities for and against on the power of the executing Court to go behind the decree observed: "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 jurisdic tion territorial, pecuniary or personal is concerned, because in the former class of cases it is not really a question of juris diction at all. The decree is a nullity and cannot be exe cuted, 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 jurisdiction 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 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 inter pretation 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." I have to address myself keeping the above observation in view whether the decree in question is a nullity not because a particular Court had no jurisdiction but because no Court at all had any jurisdiction. In my opinion the proposition of law is clear where there is no arbitration agreement between the parties, either expressly or by implication, such as the parties may be member of an Association and may be bound by the by‑laws relating to arbitration, the award given by the arbitrators is a nullity and no Court would have jurisdiction to pass any decree on its basis. The learned Judges in the above case did hold that an executing Court can enquire that decree is a nullity. They observed: "An executing Court can, we think, enquire into and decide that a decree is a nullity not on the ground of juris diction, 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 jurisdiction and other decrees, is a surer guide in this matter than a distinction drawn between what is called the absence of4iIiierent jurisdiction and irregularities in the exercise of jurisdiction." The third question then in view of the above that remains to be considered is whether the present decree is a nullity or not. The pronouncement of their Lordships of the Privy Council in the case of Chepalal (A I R 1946 P. C. 72) settles the question. Their Lordships observed if there is no valid reference the purported award is a nullity. Their Lordships also observed in that case: "In their opinion all the powers conferred upon the Court in relation to an award on a reference made in a suit pre supposes a valid reference." It follows, therefore, that where an award is a nullity the decree passed thereon would also be a nullity. Shingomal's case, (supra) in my opinion, under the circumstances of the present case and in view of the Privy Council pronouncement supports the contention that the executing Court can go behind a decree if it is a nullity. Mr. Sultan Ahmad has relied on several decisions of the Lahore High Court‑A I R 1933 Lah. 46, 1935 Lah. 549, A I R 1936 Lah. 442, A I R 1944 Lah.

302. In view of the decision taken by a Division Bench of the Lahore High Court in 1942 Lah. 129 it is not necessary to examine three earlier cases of that Court. So far as the case of 1944 Lahore is concerned, in that case no question about the nullity of the decree arose before the learned Judges. The question in that case was whether the executing Court was bound to apply the law of another province under which the decree was not executable. In my opinion this case does not decide the point involved in the present case. The two cases relied upon by the advocate for the decree holder of the Bombay High Court are A I R 1921 Bom. 301 and A I R 1940 Born.

285. The 1921 Bom. 301 case is no doubt in point but the latest view of that Court as expressed in A I R 1943 Bom. 404 is that a decree passed without jurisdic tion is a nullity and therefore incapable of execution ; the executing Court can go behind it. The 1940 Bom. 285 case is also inapplicable to the present point in question. In that case no question arose before the executing Court. On the other hand in that case a decree was challenged by way of a suit. The learned advocate has relied on two cases of the Madras High Court. In A I R 1940 Mad. 40 in fact the principle was conceded that the executing Court can go behind an award if it was apparent on the face of it that it was with out jurisdiction. The other case A I R 1940 Mad. 429 has no application to the facts of the present application. It was held in that case on the objection of the husband in a decree for maintenance that the wife was not entitled to the maintenance as she was leading an unchaste life subsequent to the passing of the decree, that the executing Court could not decide this point and that it could be decided by a separate suit. Mr. Sultan Ahmad has relied on a Nagpur case A I R 1943 Nag. 165 in which it was held that‑the executing Court could not go behind the decree which was passed on the basis of an unregistered award. The same Court in 1946 Nag. 311 has taken a different view. It was held in the latter case that where a Court passed a decree in terms of an award which was compulsorily registerable the decree was a nullity and would not be executed. The Full Bench case of the Rangoon High Court (A I R 1931 Rang. 252) would no longer be a good authority, in my opinion, after the Privy Council case of A I R 1933 P. C. The view of law taken by the learned judges of the Rangoon High Court came to this that the executing Court cannot under any circumstance go behind a decree. This view is not tenable now on the face of the pronouncement of the Privy Council. It cannot now be contended that the executing Court cannot go behind a decree under any circumstance. The conclusion to be drawn from the Privy Council case is that the executing Court can go behind a decree under certain circum stances, though limited one. The learned advocate has relied upon a case of the Allahabad High Court A I R 1950 All.

688. This case in fact supports the other side. It was held in that case that the executing Court cannot go behind the decree unless it was passed without jurisdiction. The last case relied upon by Mr. Sultan Ahmad was that of Mysore High Court (A I R 1952 Mysore 3). The head‑note of this case is misleading. This case also supports the other side. In that case the appellant was brought on record after the death of the judgment‑debtor. He contended that he was not bound by the decree. Their Lordships observed under those circumstances: "It is well settled that the executing Court has to execute the decree it stands and has no power to vary or alter it. There is no ambiguity in the decree and no suggestion of its being a nullity or in‑executable as it stands." The learned advocate for the decree‑holder had raised only two points, in the first place, that the arbitration could be held under the rules of Pakistan Cotton Association Limited and that, in the second place, the executing Court cannot go behind a decree. I have given my reasons relating to these two grounds and have come to the conclusion that the decree being a nullity the executing Court cannot execute the same. I there fore for the reasons set forth above dismiss the application for execution with costs. A, H. Application dismissed.