KULWANT KAUR AND OTHERS Vs. THE SAHIB CHAND AGRICULTURAL SERVICE SOCIETY THROUGH SH. GURDEV SINGH PAROKAR, CIRCLE GIDDARBAHA

JUDGEMENT

(1.) THIS is an execution first appeal filed by Kulwant Kaur and others judgment -debtors, against the order dated July 21, 1973 of the Sub -Judge 1st Class, Gidderbaha, where by he dismissed their objections filed under section 47 of the Code of Civil Procedure against the execution of the award dated November 26, 1971 passed against them by the arbitrator.

(2.) THE facts of this case are that Nidhan Singh son of Narain Singh, resident of village Sahib Chand, Tahsil Muktsar, District Ferozepur was a sales -man of the Sahib Chand Co -operative Agricultural Service Society (hereinafter called the Society). He Was murdered in July, 1971 and the post -mortem examination of his dead body, was performed op July 9, 1971. Nidhan Singh deceased owned Rs. 30, 480 to the Society. This amount of the Society was alleged to have been misappropriated concealed by Nidhan Singh deceased. As disputes are between the Society and the legal representatives of Nidhan Singh deceased, a reference was made to Sital Singh, arbitrator to decide those disputes. The arbitrator issued registered notices on November 11, 1971 to the President of the Society and Smti. Kulwant Kaur the widow of the deceased and to Jaskaran Singh, Guddi, Amar Singh, Charanjit Kaur and Parmjit Singh minor sons and daughters of Nidhan Singh as his legal representatives and they were asked to appear before him on November 26, 1971. This registered notice was served on Smti. Kulwant Kaur on November 10, 1971. None of the legal representatives of Nidhan Singh appeared before the arbitrator on November 26, 1971. The arbitrator after perusing the records of the Society and hearing the representative of the Society gave an award of Rs. 39,624.25 against the legal representatives of Nidhan Singh deceased in favour of the Society. The judgment -debtors did not pay the decretal amount and the decree -holder -Society made an application for execution of this award in the Court of the Sub -Judge 1st Class, Gidderbaha. Notice of this application was issued to the judgment -debtors, who filed objections under section 47 of the Code of Civil Procedure, alleging that the award is null and void as it was given against a dead person, that all the legal representatives of the deceased were not made party to the execution case, that the arbitrator judicially misconducted himself and, therefore, the execution application may be dismissed. These allegations were controverted by the decree -holder Society. The counsel for the judgment -debtors made a statement at the bar before the trial Court that the file relating to the award may be sent for and in case service on the legal representatives of Nidhan Singh had been effected before the award was passed, then he shall leave no case. The Subordinate Judge summoned that file and found that the notice was accepted by Smti. Kulwant Kaur as per postal acknowledgement due receipt, which was thumb -marked by her. The Sub -Judge, therefore, held that since the notice was served on Smti. Kulwant Kaur and through her on the minor sons and daughters of the deceased, therefore, the award was not a nullity. He dismissed the objection petition of the judgment -debtors with no order as to costs. Feeling dissatisfied, the judgment -debtors filed that appeal alleging that the decision of the lower Court is wrong and in correct and that the award was a nullity and it should be set aside and execution application may be dismissed.

(3.) AS regards the power of an executing Court to hear objections against the validity of a decree, it is firmly established that when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection, appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction; vide Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman : AIR 1970 SC 1475. Similar was the law laid down in K.C. Manchanda v. M/s. Murree Brewery Co. : AIR 1968 Delhi 167 (FB).