Muni Lal Verma, J. - (1.) THIS judgment will dispose of 3 appeals, i.e, this appeal as well as execution second appeal Nos. 723 and 724 of 1 70. The brief facts giving rise to these appeal are as under : - -
(2.) NIHAN , Bhag Singh, Ajaib Singh and Gujjar Singh were brothers. Each of them raised loan from the Co -operative Society, Jhariwala (hereinafter called the Society). Each of them was one of the four principal debtors while the other three had stood surety for the payment of the said debts. On their failure to pay those debts, the disputes Were referred by the Society to the Assistant Registrar, Co -operative Societies, Bhatinda, who exercising the powers of the Registrar, Cooperative Societies, appointed Bur Singh as Arbitrator. Bur Singh acting as such gave four awards for different amounts on August 17, 1937, against the aforesaid four brothers The Society took out execution of the said awards. The land jointly held by Mihan Singh, Bhag Singh, Ajaib Singh and Gujjar Singh was, therefore, attached and sold. It was purchased by the Society with the permission of the executing Court for Rs. 3000/ -. The total of the amounts that stood due to the Society in execution of the aforesaid four awards was Rs. 232305. Adjusting the same against the purchase money, the society deposited balance of Rs. 676 95 in the executing Court. The Society thereafter sold the said land to Naib Singh, Smt. Gurdial Kaur, Kashmir Singh and -Jasbir Singh (the appellants and hereinafter referred to as such). Mihan Singh, Bhag Singh, Ajaib Singh and Gujjar Singh raised objections that the awards were nullity since the same had been rendered without jurisdiction and, as such, the sale of land held in execution of the said awards was illegal and void and the Society had failed to deposit the purchase money within the prescribed time. These objections were; resisted by the Society and the appellants. Gujjar Singh died during the pendency of the objections, preferred by him. Therefore his legal representatives, viz., Ranjit Singh and others, were impleaded in his place. The aforesaid cases were tried on the following issues : - - 1. Whether the awards in question are nullity ? Unus on J.D. 2. Whether the decreeholder did not deposit the sale price within time, if so, its effect and whether this Court can go into this question ? Onus on J.D. Relief. The executing Court decided issue No. 2 against the judgment -debtor., but finding issue No 1 in the affirmative, allowed the objections preferred by them. Aggrieved by the said result, the appellants had carried appeals in three cases but had no success. Hence, they preferred second appeals in the said three cases. Since common questions of fact and law are involved in the said three appeals, the same are being disposed of by one judgment. 3. Shri S.K. Pipat, the Learned Counsel appearing for the appellants, raised two contentions; firstly, that the awards rendered by Bur Singh Arbitrator had the status of decrees and, as such, the executing Court could not strike them as invalid and secondly, the appellants being transferees from the decree holder -purchaser were protected by the equitable principle enunciated by section 41 of the Transfer of Property Act. In my, opinion, both these contentions are not Well founded. There can be no dispute with the rule that an executing Court cannot go behind a decree. But there is an exception to the said rule, and that exception is that if a decree or an award, suffers from lack of inherent jurisdiction of the Court, Tribunal or the body which rendered it, it would be a nullity and the executing Court would be justified in disregarding and refusing to execute it for the obvious reason that it is non -est being null and void. Even the failure on the part of the affected party to raise an objection about such a decree or award being nullity would not improve the matter because objection as to want of inherent jurisdiction of the Court or Tribunal or body, in recording such a decree, cannot be waived It would appear from the combined reading of rule 58 of the Punjab Co -operative Societies Rules, 1956 (hereinafter called the Rules) and section 50 of the Punjab Cooperative Societies Act, 1954 (hereinafter referred to as the Act) that whenever a party to the dispute, referred to in section 50(1) of the Act, desires to have the dispute determined in accordance with the said section, it has to give a no ice to the other party or parties. The said notice must be in writing and shall indicate the substance of the dispute and the intention of the party to refer the dispute to the Registrar after expiry of not less than 15 days from the date of communication of the notice. After the expiry of the said period, the party serving the notice could apply to the Registrar, stating the substance of the dispute and the names and addresses of the other party and also of its nominee if it desires the dispute to be referred to a panel of three Arbitrators. The Registrar was then to give a notice in writing to the other party at the address given in the application, calling upon him to nominate an Arbitrator on the panel within one month of the communication of the notice. If the said party failed to nominate the Arbitrator within the said period, the Registrar had power to do so. If the application made by the party concerned did not disclose that it wished to refer the dispute to a panel of three Arbitrators, the Registrar could undertake to have the dispute decided by himself or by his nominee. But he had to communicate his intention to do so to the parties to the dispute and if within 15 days of the said communication, the other party did not inform the Registrar of its desire to have the dispute referred to a panel of three Arbitrators, the Registrar or his nominee could proceed to decide the dispute. If within the prescribed interval, the other party informed the Registrar of its desire to have the dispute referred to three Arbitrators, the Registrar could require the parties to the dispute to appoint their nominees on the panel within a period of one month. It was in the event of failure of either party to appoint nominees that the Registrar could appoint his own nominees. It cannot be gainsaid that an Arbitrator designated by the Registrar under the Act to decide the dispute derives jurisdiction from his appointment; and if his appointment has not been made in accordance with the provisions of the Act and rules framed thereunder, it would be invalid and tantamount to lack of in heart jurisdiction and consequently the award recorded by such an Arbitrator would be a nullity and the same can be challenged as such in execution proceedings. I am supported in this view by judgment of a Full Bench of this Court in Ran Singh v. The Gandhar Agricultural Cooperative Service Society, 1975 R.L.R. 201, and also by decision in Bishan Singh v. Anjman Imdad Kafayat, (1966) 68 P.L.R. 198. When notice or notices as prescribed by rule 58 of the Rules are not given, it would render the appointment of an Arbitrator under section 50 of the Act invalid and the award given by such an Arbitrator will be nullity being without jurisdiction (see in this connection Bishan Singh's case (supra). In the case in hand, no notice required by rule 58 of the Rules was given by the Society to the appellants of its intention to refer the dispute to the Registrar under section 50(1) of the Act. Neither the Registrar nor the Assistant Registrar, Co -operative Societies, Bhatinda, served any notice on the appellants giving then option to refer the dispute to a panel of three Arbitrators or intimating them about his intention to refer the dispute for decision to an Arbitrator. The Assistant Registrar Co -operative Societies, Bhatinda, had straightaway appointed Bur Singh as an Arbitrator without complying with the procedure prescribed by rule 58 of the Rules. Tajinder Singh Inspector, Co -operative Societies who appeared as A.P.W. 11, admitted during cross -examination that no notice respecting the appointment of an Arbitrator to decide the dispute was served on the appellants. Bur Singh admitted that he too did not serve any notice on the appellants for entering appearance before him. So, it is evident from their (Tajinder Singh's and Bur Singh's) statements that there had been complete non -compliance of the procedure laid by rule 58 of the Rules. Therefore, the conclusion in inevitable that the appointment of Bur Singh as an Arbitrator was invalid and, as such, he lacked inherent jurisdiction to render the awards. Hence, the awards which were recorded by him were nullity for want of jurisdiction. In that view of the matter, the executing Court was justified in disregarding the same as nullity. So, there is no force in the first contention advanced by the Learned Counsel for the appellants and the same is overruled.
(3.) SECTION 41, Transfer of Property Act, as I understand, does not apply as such to the States of Punjab yet the principal underlying it is applicable. One of the general principles of law of transfer of property is, that no man can transfer to another a right or title greater than what he himself possesses for the reason that he gives not who hath not. Exception to the said general principle is that if the true owner permits another to hold himself as the real owner, a third person who bona -fide deals with the said other person may acquire a good title to the property as against the true owner. The said exception is really a form of equitable doctrine of estoppel embodied in section 41, Transfer of Property Act. In the case in hand the Society who sold the land to the appellants cannot be said to be ostensible owner. It had purchased the land at a Court auction It was not in possession of the land with the consent, express or implied, of the appellants who were interested in it (the land) being its owners. Therefore, the principle embodied in section 41. Transfer of Property Act, is not applicable for the obvious reason that the society cannot be said to be ostensible owner of the land, much less in its possession, with the consent of the appellants. It is in that view of the matter that the said contention raised by the Learned Counsel for the appellants is untenable, and the same is repelled.;