Yumnam Amudombi Singh v. Chabungbam Maipak Singh — 1970 DIGILAW 46 (GAU)

JUDGMENT In this Execution First Appeal the legality and the validity of order dated 8th of January 1969 passed by Shri M. C. Roy, Subordinate Judge, Manipur, by which he accepted the objections of the respondents under Sec. 47 of the Civil P. C., hereinafter called the Code, against the execution application filed by the appellants is challenged. 2. The facts bearing on the appeal are not much in dispute. On 21-3-1968 the present appellants petitioned the Registrar of the Co-operative Societies, Manipur, for arbitration between themselves and the respondents herein respecting the dispute arising out of an agreement dated 17-8-1967. That agreement was made between the appellants Y. Amudombi Singh and Ch. Ibohal Singh, respectively the Chairman and the Secretary of the Managing Committee of Kharungpat Lamjaokhong Khong Ahanbi Fishing Co-operative Society Limited, hereinafter called the Society, and the respondents. The agreement was in regard to the enjoyment of the sub-fishery called Soirel forming part of Kharungpat Fishery No. 164 for the period 1-4-1967 to 31-3-1968. The reliefs claimed were for the recovery of balance lease-money, immediate cessation by the respondents of the enjoyment of the sub-fishery and vacating the possession thereof and for future mesne profits. The claim made on behalf of the Society was resisted on various grounds. By his award dated 24-7-1968 the Registrar decreed a sum of Rs. 4,950/- in favour of the Society and directed that the amount should be paid by the respondents within two months. The respondents were ordered, in addition, to cease enjoying the sub-fishery forthwith and to deliver the vacant possession thereof to the Society. On the basis of that award the decree-holders made an execution application in the Court of the Subordinate Judge, Manipur, praying for delivery of possession of the sub-fishery. That prayer was opposed by the judgment-debtors (the respondents of this appeal) who filed objections under Section 47 read with Section 151 of the Code. They pleaded that the Registrar had no jurisdiction to make an award respecting immovable property and that the appropriate authority to which the decree-holders could approach for securing vacant possession of the fishery was either the Deputy Commissioner or the Sub-Deputy Collector of the area concerned. The decree-holders, in their reply, controverted the validity of the legal objections raised by the judgment-debtors. 3. The decree-holders, in their reply, controverted the validity of the legal objections raised by the judgment-debtors. 3. The only point debated before the executing Court, as revealed by para 6 of the order under appeal, was whether the part of the award "regarding cessation of the enjoyment of Soirel sub-fishery and vacating its possession by the judgment-debtors be (is?) executable or not." The learned Subordinate Judge held that the Registrar lacked jurisdiction to decide a dispute respecting title to or right over any immovable property, such as, sub-fishery, that the Registrar had been moved for giving the award not by the Society but by its Chairman and the Secretary, that the latter had no authority to do so in view of Section 85 of the Assam Co-operative Societies Act, 1949, hereinafter referred to as the Act, as extended to Manipur, and that on account of these two legal defects the award made by the Registrar respecting the sub-fishery is unexecutable. In para 8 of the order the Subordinate Judge happened to observe, obviously unintentionally that "In view of above finding and decision it is to be held that the decree as passed by the Registrar, Co-operative Societies, is without jurisdiction and as such a nullity, which cannot be acted upon in execution." It may be recalled that the only point canvassed before the executing Court on behalf of the judgment-debtors was that the part of the award in regard to the delivery of possession of the sub-fishery to the decree-holders was invalid and that it was never the case of the judgment-debtors that the award was also invalid respecting the sum of Rs. 4,950/- decreed against them. 4. Aggrieved by the order of the Subordinate Judge the decree-holders came up in appeal to this Court. 5. It was commonly admitted by the parties counsel during the course of arguments that the judgment-debtors had relinquished the possession of the sub-fishery in favour of the decree-holders after the impugned order was made by the executing Court and that as such there was no live dispute between the parties respecting that part of the decree. 5. It was commonly admitted by the parties counsel during the course of arguments that the judgment-debtors had relinquished the possession of the sub-fishery in favour of the decree-holders after the impugned order was made by the executing Court and that as such there was no live dispute between the parties respecting that part of the decree. However, Shri Manisana Singh, representing the decree-holders, submitted that since the Subordinate Judge had held in para 8 of his order that the whole of the decree was a nullity, it was necessary that this Court should give its verdict on that point to obviate any further dispute regarding the executability of the money-part of the decree. Shri Y. Imo Singh, appearing for the judgment-debtors, did not join issue with Shri Manisana Singh on that point and I think he was right in adopting that stand. 6. The learned Subordinate Judge held that the decree to be a nullity on the double finding that the suit before the Registrar had been filed not by the Society but by its Chairman and the Secretary and that was in violation of Section 85 of the Act and Order 29, Rule 1 of the Code, and, secondly, that in terms of Sections 63, 64 and 82 of the Act the Registrar has jurisdiction only to decide disputes relating to "financial matters and recovery of dues" and that he has no jurisdiction "to decide the question regarding the title or right over immovables as, for instance, the sub-fishery in the present case." Shri Manisana Singh vehemently criticised these findings of the Subordinate Judge. He submitted that an executing Court cannot go behind the decree and that it must take the decree as it stands and execute the same. Shri Manisana Singh was however fair enough to concede that there is one exception to the broad proposition propounded by him, it being that if the Court which passed the decree lacked inherent jurisdiction respecting the matter in dispute then the decree shall be a nullity and the judgment-debtors entitled to raise an objection even before the executing Court. Shri Manisana Singh was however fair enough to concede that there is one exception to the broad proposition propounded by him, it being that if the Court which passed the decree lacked inherent jurisdiction respecting the matter in dispute then the decree shall be a nullity and the judgment-debtors entitled to raise an objection even before the executing Court. Shri Y. Imo Singh, opposite counsel, urged equally forcefully that it is open to the judgment-debtors to raise an objection in the executing Court if the decree suffers from any legal or other infirmities besides the lack of inherent jurisdiction in the Court passing the decree respecting the subject-matter of dispute. Shri Y. Imo Singh, however, could not cite any authority to support that proposition. He undertook at the conclusion of the arguments to send some authorities to the Court after bringing the same to the notice of Shri Manisana Singh, but he failed to do so. Therefore, I am left to decide the fate of the appeal on the basis of arguments addressed in open Court. 7. Shri Manisana Singh cited two Supreme Court authorities reported in AIR 1954 SC 340 , Kiran Singh v. Chaman Paswan, and AIR 1962 SC 199 , Hira Lal v. Kali Nath, to support his proposition set out above. The two authorities lay down identical principle though in the case of Kiran Singh, AIR 1954 SC 340 the matter was examined in detail in the context of Section 21 of the Code and Section 11 of the Suits Valuation Act. It was held in the case of Hira Lal, AIR 1962 SC 199 that it is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, it was added, an objection as to the local jurisdiction of a Court can be waived and that principle has been given a statutory recognition by enactments like Section 21 of the Code. On the other hand, it was added, an objection as to the local jurisdiction of a Court can be waived and that principle has been given a statutory recognition by enactments like Section 21 of the Code. The validity of a decree can be challenged in execution proceedings, the Supreme Court observed, only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. As a matter of fact, Shri Imo Singh also placed reliance on these two authorities of the Supreme Court but he was unable to indicate how they helped him in establishing the proposition canvassed by him. The underlined word only used by the Supreme Court clinches the issue. The decree can be assailed at the execution stage only on the footing that the Court which passed it lacked inherent jurisdiction either in regard to the subject-matter or over the parties arrayed before it. 8. An objection bearing on the question of jurisdiction can possibly fall in three categories, namely, pecuniary, territorial, or in respect of the subject-matter of the dispute, Section 21 of the Code enacts that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Section 11 of the Suits Valuation Act provides that notwithstanding anything contained in Section 578 of the Code (now Section 99) an objection that a Court which, had no jurisdiction over a suit or appeal had exercised it by reason of overvaluation or undervaluation, should not be entertained by an appellate Court, except as provided in the section. Section 11 of the Suits Valuation Act provides that notwithstanding anything contained in Section 578 of the Code (now Section 99) an objection that a Court which, had no jurisdiction over a suit or appeal had exercised it by reason of overvaluation or undervaluation, should not be entertained by an appellate Court, except as provided in the section. These two statutory provisions were thoroughly examined by the Supreme Court in the case of Kiran Singh, AIR 1954 SC 340 and the proposition enunciated was that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings, but where the defect in jurisdiction is of a kind which falls within the saving provisions of Section 21 of the Code or Section 11 of the Suits Valuation Act, it cannot be raised except in the manner and subject to the conditions mentioned therein. By this method of elimination as pointed by the High Court, we are led to the conclusion that at the execution stage only an objection relating to the inherent lack of jurisdiction in the Court passing the decree can be raised and none else. This is exactly what was held by the Supreme Court in the case of Hira Lal, AIR 1962 SC 199 (supra). 9. It is in the light of the aforementioned principles of law that I proceed to determine the validity or otherwise of the decree made by the Registrar. Section 63 of the Act provides that any dispute touching business of a registered society, other than a dispute regarding disciplinary action taken by a society against an employee of the society, or of the liquidator of a society shall be referred to the Registrar for decision if the parties thereto are from among the categories mentioned therein. Shri Y. Imo Singh did not contest the proposition that a dispute between a Society and its members can be referred for arbitration to the Registrar. His only contention was that a dispute relating to immovable property cannot be referred to the Registrar in terms of Section 63. However, on plain reading of the Section it is not possible to accept that contention. His only contention was that a dispute relating to immovable property cannot be referred to the Registrar in terms of Section 63. However, on plain reading of the Section it is not possible to accept that contention. The section very unequivocally provides that any dispute touching business of a registered society shall be referred to the Registrar. In other words if the dispute is touching the business of the Society and it is between the parties listed in the section, there is no alternative but to refer the same to the arbitration of the Registrar as is made clear by the verb shall used in the section. Therefore, the decision whether a dispute can be referred to the Registrar under Section 63 will not depend on the fact whether it relates to money transaction or immovable property, but will rest on the fact whether that dispute is "touching business of the registered Society." Appellant particular Society may legitimately undertake the business of dealing in immoveable properties or running of cinema houses. In reference to such business, a dispute may and can arise between the Society and members thereof respecting immovable properties. If so, then in terms of Section 63 of the Act it would be open to the Society to refer such a dispute to the Registrar. The section does not provide in terms that the dispute contemplated by it must relate to financial transactions. Therefore, I cannot subscribe to the view taken by the executing Court in the impugned order and which has been urged by Shri Imo Singh in this Court. Hence, I repel the contention that the Registrar could not have given an award in regard to the sub-fishery in dispute. In other words, the Registrar did not lack inherent jurisdiction in giving the award about the sub-fishery. 10. I may also refer in brief to the second point on which the learned Subordinate Judge rested his conclusion that the decree was a nullity. That point is that the submission of the dispute to the Registrar for arbitration had been made not in the name of the Society but in the names of its Chairman and the Secretary. I have gone through the relevant application made to the Registrar for that purpose. It is marked Ext. A/1. That point is that the submission of the dispute to the Registrar for arbitration had been made not in the name of the Society but in the names of its Chairman and the Secretary. I have gone through the relevant application made to the Registrar for that purpose. It is marked Ext. A/1. It clearly indicates that the dispute referred to the Arbitration was one which had cropped up between the Society on the one hand and the judgment-debtors on the other. It is correct that the application was made in the names of the Chairman and the Secretary representing the Managing Committee of the Society but in doing so the Society only complied with the requirements of the form No. V prescribed by Rule No. 61 of the Manipur Co-operative Societies Rules, 1959. The form No. V does not envisage that the application to Registrar should be made in the name of the Society. According to that form, the application has to be signed inter alia by the Chairman and the Secretary and this was done. It is also mentioned in the application that the two signatories had been authorised by resolution No. 1 dated 6-3-1968 of the Managing Committee of the Society to make the application. Hence, I can find no fault with that application. Moreover, the manner in which an application is made or a plaint is filed relates to a matter of form and not of substance. If the application or the plaint suffers from any such defect, the aggrieved party must raise an objection before whom the proceedings are initiated or before the appellant or revisional authority. Such an objection cannot be raised in the executing Court for the first time because it does not fall in the category of an objection indicating lack of inherent jurisdiction by the forum seized of the case. If the contention of Shri Imo Singh were to prevail, there would be no end to litigation even with the final decision in a suit or proceeding. That is a situation which cannot be contemplated with equanimity. All disputes, legal or factual, barring the one relating to inherent lack of jurisdiction must be considered as concluded after they have been disposed of by competent authorities and have assumed finality by passage of time. That is a situation which cannot be contemplated with equanimity. All disputes, legal or factual, barring the one relating to inherent lack of jurisdiction must be considered as concluded after they have been disposed of by competent authorities and have assumed finality by passage of time. In this view of the legal position, the second point relied upon by the Subordinate Judge in support of his finding is also without substance. 10A. Before I conclude a brief reference may be made to Section 85 of the Code (Act?) and Rule 1 of Order XXIX of the Code. Section 85 declares that every registered Society shall be deemed to be a body corporate and it shall have power, inter alia, to institute and defend suits and other legal proceedings. The section does not enjoin that the suit must of necessity be filed in the name of the Society. Section 100 of the Act authorises the Chief Commissioner to make rules "to carry out the purpose and objects of the Act, and Rule 61 of the Rules formulated by him prescribes the form (No. V) in which reference of a dispute shall be made to the Registrar. That form was adopted by the appellants in making the reference. Therefore, I cannot discern any violation of Section 85 of the Act. Likewise, the provisions of Rule 1 of Order XXIX do not appear to have been infringed. That Rule enacts that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Apparently, the Rule relates to signing and verification of the pleadings and does not embrace the subject in whose name the suit should be brought on behalf of the corporation. Indeed, the marginal note of the Rule "Subscription and verification of pleading" makes the legislative intendment pretty clear and puts the matter, beyond the pale of controversy. Moreover, the Rule is permissive and not of mandatory nature. Hence, neither of the two provisions cited by Shri Imo Singh is of any help to him. 11. As a result of the conclusions recorded above, I accept the appeal on holding that the award given by the Registrar is perfectly valid and executable. Moreover, the Rule is permissive and not of mandatory nature. Hence, neither of the two provisions cited by Shri Imo Singh is of any help to him. 11. As a result of the conclusions recorded above, I accept the appeal on holding that the award given by the Registrar is perfectly valid and executable. The order made by the Subordinate Judge is quashed. Taking all the circumstances into consideration, I leave the parties to bear their own costs in this Court as also in the executing Court respecting the objections filed by the judgment-debtors. Appeal allowed.