SAHIB CHAND AGRICULTURAL SERVICE SOCIETY Vs. KULWANT KAUR

JUDGEMENT

(1.) An award for a sum of Rs. 39624.25 was passed by the arbitrator appointed under the Co-operative Societies Act against the widow and children of one Nidhan Singh who was murdered in July, 1971. When the Society, in whose favour the award was made, sought to execute the award in the Court of the Subordinate Judge First Class, Giddarbaha, an objection was raised by the wife and children that the award was a nullity and could not be executed. The objection was overruled by the learned Subordinate Judge. On appeal to this Court, Pattar, J. found that the award was a nullity insofar as it related to the children of Nidhan Singh, but that it was valid insofar as it related to the widow of the deceased. The Society and the widow have preferred appeals under clause X of the Letters Patent against the decision of Pattar, J.

(2.) In the appeal by the Society it is argued by the learned Counsel that the minor children of Nidhan Singh were represented by their mother on whom notice of the proceedings before the arbitrator had been served. No doubt the mother also remained ex parte, but that, according to the learned Counsel, would make no difference. Learned Counsel relied on the decision of the Andhra Pradesh High Court in A. Venkataseshayya and others v. A. Virayya and others, 1958 AIR(AP) 1, and on the decision of this Court in Amrik Singh and another v. Karnail Singh and others, 1974 AIR(P&H) 315. The first case is not of any real help to the appellant society. All that was held in that case was that the question whether a decree was without jurisdiction or was otherwise null and void did not come within the purview of section 47 of the Code of Civil Procedure. Even if the question does not fall within section 47 of the Code, it is always open to a judgment-debtor to object to the execution on the ground that the decree itself was void and a nullity. The second case is more to the point. It was held that non-observance of the provisions of Order 32 Rule 3 of the Code of Civil Procedure would not render the decree void unless the minor defendant in the suit had in fact been prejudiced by such non-observance. In the same decision it was pointed out that where a minor was not at all represented, in fact or in law, then the decision rendered against him would be void. It was further held that though there was substantial representation of the minor the decision would not become void, unless the minor had suffered prejudice by non-compliance of the provisions of Order 32 Rule 3. The first question to be considered is whether the minor was in fact or in law represented at all before the arbitrator. Notice was taken out to the mother of the minor children. That was received by the mother. She herself failed to appear before the arbitrator. Therefore, it must be said that the minors were not represented at all before the arbitrator. In such a case the question of prejudice is immaterial. The occasion for considering the question of prejudice arises only where the minor is represented substantially, but not where he is not represented at all. Since in the present case the minors were not represented at all before the arbitrator, we agree with the learned Single Judge that the award against the minors was void. That disposes of the appeal filed by the Society.

(3.) In the appeal filed by the mother, the argument of the learned counsel was that a joint and several decree could not be passed against the widow as well as the children of late Nidhan Singh. According to him a separate decree alone could be passed against each of the heirs of Nidhan Singh for a proportionate share of the debt due to the Society. There is no basis for this submission. Without any doubt all the heirs of Nidhan Singh are jointly and severally liable for the debt to the extent of the estate of Nidhan Singh in their possession. The appeal filed by the widow of Nidhan Singh is also, therefore, dismissed.