The Shiromant Gurdwara Parbhandak Committee, Amritsar vs Mahant Kirpa Ram

B.R. Tuli, J.—This execution first appeal is directed against the order of the learned Additional District Judge, Amritsar, dated 21st of June 1968, whereby he held that the respondents could execute the decree in his Court.

The facts are that Mahant Kirpa Ram, Chela Mahant Sant Das, was the mahant of the gaddi known as Gurdwara Manji Sahib situate at Nankana Sahib (now in West Pakistan). This Gurdwara was taken over by the Shiromani Gurdwara Parbandhak Committee, Amritsar, and an agreement was entered into between Mahant Kirpa Ram and the Shiromani Gurdwara Parbandhak Committee. Recording to which the properties came to belong to the Shiromani Gurdwara Parbandhak Committee and Mahant Kirpa Ram was to be paid Rs. 1,000/- per mensem during his lifetime. After his death, his sons were to be paid Rs. 500/- per mensem as maintenance for their lives. After their death, the grandsons of Mahant Kirpa Ram were to receive Rs. 250/- per mensem during their lives. An application was made to the Sikh Gurdwara Judicial Tribunal at Lahore u/s 19 of the Sikh Gurdwaras Act, 1925 (Punjab Act 8 of 1925), hereinafter referred to as the Act, for passing appropriate orders giving effect to the said agreement. The Tribunal passed its order on 4th of May 1927, whereunder Mahant Kirpa Ram became entitled to the payment of the sum of Rs. 1,000/- per mensem and his sons and grandsons were to get the amounts mentioned above. The amounts specified were to be paid to Mahant Kirpa Ram, his sons and grandsons out of the income of the land attached to Gurdwara Manji Sahib. It appears that Mahant Kirpa Ram continued to receive the amount under that order till his death.

Due to the partition of the country in August 1947, Gurdwara Manji Sahib was left in West Pakistan and Mahant Kirpa Ram''s sons came to India. They took out execution of the said order of the Judicial Tribunal in the Court of the District Judge, Amritsar in 1952, claiming arrears of maintenance for the period August 1947 to June 1952 at the rate of Rs. 500/- per mensem. The total amount claimed was Rs. 29,500/-. A compromise was arrived at between the parties on 5th of July 1952, according to which the Shiromani Gurdwara Parbandhak Committee paid a sum of Rs. 14, 750/- to the decree-holders in full and final settlement of their claim for arrears of maintenance and the parties further agreed that in future the decree holders would be entitled to receive maintenance at the rate of Rs. 300/- instead of Rs. 500/- per mensem. In view of this compromise the execution was consigned to the record-room on 5th of July 1952.

The decree-holders presented the present execution application in the Court of the District Judge, Amritsar. on 15th of November 1967, claiming Rs. 7, 950/- on account of arrears of their maintenance. When notice of this application was issued to the Shiromani Gurdwara Parbandhak Committee, it raised the following objections:

(i) The decree passed by the Sikh Gurdwara Judicial Tribunal at Lahore in 1927 was not executable by the Court of the. District Judge, Amritsar;

(ii) The mode to recover the arrears of maintenance was to have them realised through the Collector of the district in which the Gurdwara is situate as arrears of land-revenue and the Court of the District Judge, Amritsar, cannot recover the amount by attachment and sale of the property of the Shiromani Gurdwara Parbandhak Committee.

These objections were rejected by the learned Additional District Judge on 21st of June, 1968 and the Shiromani Gurdwara Parbandhak Committee was directed to deposit the decretal amount in his Court on or before 15th of July 1968. The present appeal is directed against that order.

The first point argued by the learned counsel for the appellant is that the amount of maintenance claimed by the decree-holders was, according to the decree passed by the Sikh Gurdwara Judicial Tribunal at Lahore, payable out of the income of the land attached to Gurdwara Manji Sahib, Nankana Sahib. To recover such amounts the provision is made in section 25 of the Act, which is in the following terms:

Every sum ordered by a tribunal to be paid out of the income of a gurdwara by way of compensation shall he deposited in the treasury of the tahsil in which the gurdwara is situated, and shall be paid to the person or persons entitled to it under such order or under the provisions of section 24 in such manner as may be prescribed and if it is not so deposited shall be recoverable out of the income of such gurdwara or by way of temporary alienation of the agricultural land of such gurdwara for a period which the Collector may determine.

According to this section the amount could be recovered through the Collector of the district in which the Gurdwara is situated. Gurdwara Manji Sahib having been left in West Pakistan, the procedure prescribed u/s 25 of the Act cannot be followed. As the appellant is not in receipt of any income from the land attached to the Gurdwara, the liability to pay the amount under the decree passed by the Sikh Gurdwara Judicial Tribunal in 1927 cannot be fastened on the appellant. The amount decreed was made a charge on the income of the land attached to Gurdwara Manji Sahib at Nankana Sahib and can be recovered from that income. It is argued by the learned counsel for the respondent-decree-holders that u/s 127-B of the Act the appellant is liable to pay the amount, because it received land in lieu of the land left in West Pakistan which was attached to Gurdwara Manji Sahib and Nankana Sahib. There is, however no proof of this fact on this record and the appellant cannot be made liable to the respondents for the amount for which execution has been taken out as no unconditional liability to pay the amount under the decree was laid on the appellant.

The learned counsel for the respondents has relied on section 12 (10) of the Act in support of the plea that the District Court at Amritsar has the jurisdiction to execute the decree passed by the Sikh Gurdwara Judicial Tribunal at Lahore in 1927. This provision does not help the respondents, as the Court which could execute the decree was the District Court within whose jurisdiction the Gurdwara was situated or the District Court to which the Tribunal transferred the decree for execution. Admittedly, in the instant case the decree was not transferred to the District Court at Amritsar for execution. For this reason the District Judge or the Additional District Judge at Amritsar has no jurisdiction to execute it.

The learned counsel for the respondents has then argued that in the execution application filed in 1952 the appellant had not taken objection as to the jurisdiction of the District Court at Amritsar to execute the decree and, therefore, this objection could not be taken by the appellant in the present execution application. This matter of jurisdiction of the Court should be deemed to have been decided in the earlier execution application of 1952 and to operate as constructive res judicata in the present proceedings. I regret my inability to agree to this submission of the learned counsel. He has placed his reliance on a judgment of their Lordsnips of the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, in which it was held that the principle of constructive res judicata is applicable to execution proceedings, and that where neither at the time when the execution application was made and a notice was served upon the judgment-debtor, nor in the applications for setting aside the two sales made by him did the judgment-debtor raise any objection to execution being proceeded with on the ground that executing Court had no jurisdiction to execute the decree, the failure to raise such an objection, which goes to the root of the matter, precluded him from raising the plea of jurisdiction on the principle of constructive res judicata after property had been sold to the auction-purchaser who had entered into possession. This observation of their Lordships has on applicability to the facts of this case. In that case the objection to jurisdiction was raised at a later stage in the same execution application and it was not shown that the executing Court lacked inherent jurisdiction to execute that decree. In the instant case no occasion arose to object to the jurisdiction of the District Court, Amritsar to execute the decree in the 1952 execution proceedings, as the parties came to a compromise and the execution proceedings were consigned to the record-room. The execution application filed in 1967 is an independent proceeding and it is open to the appellant to show that the executing Court has no jurisdiction to execute the decree. Merely because the previous execution application was fild by the respondents in that Court does not confer jurisdiction on it to entertain and proceed on the subsequent execution application as the Court lacks inherent jurisdiction in this matter. It cannot, therefore, be said that the point of jurisdiction of tie Court should be deemed to hove been deckled in the earlier execution application of 1952 and that it operates as constructive res judiiata m the present execution proceedings.

The utl.er judgment relied upon by the learned counsel is a Full Bench judgment of the Patna High Court in Baijanth Prasad Sah v. Ramphal Sehni another AIR 1962 Patna 72 in which it was held-

The doctrine of res judicata is very much wider in scope than section 11. It applies to execute proceedings. If a party takes an objection at a certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, it must be deemed that the Court has adjudicated upon the other objection also and has held against it. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceedings and leaving had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it.

As I have said above, the occasion to raise the objection with regard to jurisdiction did not arise as the parties had come to a compromise and in my opinion, the point of jurisdiction cannot be held to have been decided by implication. It has not been shown how the District Court at Amritsar had jurisdiction to execute the decree passed by the Sikh Gurdwara Judicial Tribunal at Lahore in 1927, and for this reason the District Court at Amritsar lacked inherent jurisdiction to execute that decree. It is a well-settled principle of law that if a Court lacks inherent jurisdiction to hear and decide a matter, the parties by acquiescence or express consent cannot confer the necessary jurisdiction on the Court. Failure to raise objection to the jurisdiction of the Court, when it had no inherent jurisdiction to deal with the matter, does not have the effect of that matter having been decided against the party which failed to raise that objection. Any order passed without jurisdiction is a nullity and can be ignored as non-existent.

The learned counsel for the respondents has then submitted that the appellant cannot raise this objection on the ground of estoppel. He argued that by its representation the appellant led the respondents to believe that the Court of the District Judge at Amritsar had jurisdiction to execute the decree. No such representation was made by the appellant to the respondents. The only fact was that the respondents filed an execution application and the appellant made an agreement with them, with the result that the execution application was consigned to the record-room as a result of that compromise. Moreover there is no estoppel against a statute and, therefore, there is no merit in this submission of the learned counsel for the respondents.

The only way to confer jurisdiction on any District Court to execute a decree passed by the Sikh Gurdwara Judicial Tribunal at Lahore appears to be to approach the Sikh Gurdwara Judicial Tribunal, whenever it is constituted, to transfer that decree to a particular District Court u/s 12(10) of the Act, and. unless that is done, the District Court at Amritsar has no jurisdiction. It may also be possible for the respondents to make an application u/s 19 of the Act to the Sikh Gurdwara Judicial Tribunal for an order giving effect to the agreement made between them and the appellant in 1952, whereunder they agreed to accept Rs. 300/- per mensem instead of Rs. 500/- per mensem from the appellant. If an order is passed by the Tribunal u/s 19 of the Act, that may be executable u/s 12(10) of the Act.

For the reasons given above, this appeal is accepted and the order under appeal is set aside. There is, however, no order as to costs.