Kulwant Kaur and others vs The Sahib Chand Agricultural Service Society

Pritam Singh Pattar, J.—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 u/s 47 of the CPC against the execution of the award dated November 26, 1971 passed against them by the arbitrator.

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 appeard 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 u/s 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.It is undisputed that Jaskaran Singh, Guddi, Amar Singh, Charanjit Kaur and Paramjit Singh, who are the children of Nidhan Singh deceased, are minors. The arbitrator gave notice of the arbitration proceedings by registered post to Smti. Kulwant Kaur only, but she did not appear before the arbitrator on November 26, 1971.It is apparent from the copy of the award, which is on the file of tb.3 trial Court, that no guardian of the minor legal representatives of Nidhan Singh deceased was appointed by the arbitrator during the arbitration proceedings. It is well settled law that there is lack of inherent jurisdiction in a Court to pass a decree against a minor if the minor is not properly represented. In the case of a minor who is not properly represented he must be taken to be no party to the proceedings at all and, therefore, any decree which is passed against him without his being a party to the proceedings is a decree passed without jurisdiction and similarly an award passed against him is null and void as against the minor. The executing Court can always decide whether the Court which passed the decree had or had not inherent jurisdiction to pass the decree in question and that whether the minor judgment-debtor was properly represented before it or not; vide AIR 1942 129 (Lahore) and Ramudar Singh and Others Vs. Ramsurat Singh and Others, .

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 Vs. Rajabhai Abdul Rehman and Others, . Similar was the law laid down in K.C. Machanda Vs. Murree Brewery Co., Rawalpindi, .

In the instant case, the minor legal representatives of Nidhan Singh deceased were not represented before the arbitrator. Rule 54 of the Punjab Co-operative Societies Rules, 1963 lays down that the Registrar or the arbitrator, as the case may be shall have power to appoint or remove a guardian for the party to the dispute, who is a minor or who, by reasons of unsoundness of mind or mental infirmity, incapable of protecting his interest. As mentioned above, in the instant case, Smti. Kulwant Kaur, the mother of the minor legal representatives of the deceased did not appear before the arbitrator in spite of service. Consequently, it was incumbent on the arbitrator to have appointed a guardian of the minors to protect their interest, but he did not do so. In view of the law laid down in the above-mentioned cases, the award given by the arbitrator against the minors, therefore, is a nullity and it cannot be executed against them. The objections filed by the minor legal representatives of Nidhan Singh deceased, therefore, must succeed.

As regards Smti. Kulwant Kaur, the widow of Nidhan Singh deceased, the award is valid. Notice was issued to her by the arbitra-tor to appear before him on November 26, 1971, but in spite of service, she did not appear and the arbitrator was therefore, competent to proceed ex-parte against her.

The learned counsel for the appellant then contended that the award given by the arbitrator is illegal, because he gave decree for Rs. 39.624.25 p. personally against the legal representatives of the deceased Nidhan Singh. It is correct that in the award it is written that award for the above amount is granted to the Society against the legal representatives of Nidhan Singh deceased, but the award will not become illegal or void on that account. Admittedly, the legal representatives or any one of them is not personally liable for the debt of Nidhan Singh and the award could only be passed against the property of the deceased in the hands of his legal representatives or legal representatives. In the instant case, the award against the five minor children of Nidhan Singh has been held to be a nullity and, therefore, it cannot be excepted against them or against the property of Nidhan Singh in their hands. It seems that the arbitrator being ignorant of legal terms, loosely passed the award against the legal representatives of Nidhan Singh, but as a matter of fact he should have written that the award is passed for the above amount against the property of the deceased in the hands of his legal representatives. Therefore, the effect is that the property of Nidhan Singh in the hands of his widow Kulwant Kaur will only be liable for being proceeded against in the execution of this award. With these observations, the appeal filed by Smti. Kulwant Kaur appellant is dismissed. However, the appeal filed by Jaskaran Singh, Guddi, Amar Singh, Charanjit Kaur and Paramjit Singh, the minor Children of Nidhan Singh deceased, is accepted and their objections filed u/s 47, Civil Procedure Code, are accepted and it is ordered that the award dated November 26. 1971 of the arbitrator passed aginst them in a nullity and is not executable against the property of the deceased in their hands. In view of the point of law involved, the parties are left to bear their own costs.